SUMMER 1996

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Distributed by West Services, Inc.
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13794271
Results 01 the Spring 1993 FAX POll
W. ""Irrt/ 4 1 1 _ I• ••r FAX POLL
"._Ip
II,,,",,,
me,",d"
op"'." .. opm
.r....,.
".".. ""/,b
bI.>pI."d bJrlb" I••ril"11
I. lb.
ml,l/ln,. "'IIY
would Ilk, to comment on fh,laull
II/seuued heflin th, form of,n 'ISIY or Irt/d•• pi"" lind to
Edllor, ArtI.... L• ..,,, M.g,,''', 4(Jg W. M.rtb.m, LIlli. Rook.
AR 72201. ",I.w." III. " ..111, IIg."d p''''''.g.. S.m.
perm",.,.. will nm .dd to 111t1% IS more thin 0"" 'lIftnf Of no
,trStnf ft, ,Iren.
b,
I. 01. yao IIl10w lIle orlml..1trI.1 •• u.. om••" ......d
" _ '.......llIIlllotlney King?
15% Yn
0' ••Ing
.85% No
2. Old yao ..... wlUllll... nil.' In 1lI.11rt.1?
45% Yn
45% No
3. Do 'OU leel the lu.t1•••yst.m In the U. S.•how.d II. f.ull.
d.rtnV lIle lint trI.l?
&rt. Yn
35% No
4. Old ,oufollow U11ll1oV Civil Righls TrtalllIrough lIle media?
_Yn
l%Na
5. Old 'OU .... wlUlllle ..nllct?
111% Yn
.95% No
e.
11_,..
Da YO' thlnIlllle two omce" .o......d ol nlng
.hoeld han .110 ....n .o......d of .Idlng .ntI ._ng?
25%
65% No
y..
7. Da ,a. Ihlnk the twa olll."•••q.ln.d .ho.ld h••• been
......... olnlo....... Ive ,.... ?
.95% Yn
111% No
•. Do
.._
'0' thlok tb. Iwo onlu,. ••q.ltI.d .ho.l. b... b•• n
uI.ldlng .Ad ._ng?
41% Yn
55% No
V. Do yao til•• "'1110 _Illy" II. mllor ""bl.m In lIle U_
SIll...?
65% Yn
35% No
10. Do ,o.llIlnk "poll•• brullllly" I•• m'lor probl.m In Arb.... ?
45% Yn
50% No
11. Do ,a. tblnk the poll•• In An..... t.k••"10••1, tb. I.w.
ag.lnst l1li........Ive ..... ?
35% Yn
65% No
12. Da yao IlIln1lllle otllce" ..m ..ed
PI..1Iy .... IlI..Vh llIey han no orlml..1
1.5%
75% No
Y..
d ""Ive lIle mulm.m
?
13. Do ,oulllink lustlce WI' .....d In 1lI11 .... ?
55% Y..
38% No
FAX POLL
SEX WITH CLIENTS
O.K. How many of you have never
looked at the FAX Poll and are looking
now because of the headline? We
really don't want to know, just answer
these questions for us. Sex with
clients is an issue that is currently
being dealt with by bars across the
country. Several states have made rule
changes to their professional conduct
codes prohibiting sexual relationships
between lawyers and clients.
Remember-the poll is anonymous.
0'
yes
yes
no
__ none of your business,
but I'll answer the rest of the poll
__none of your business and
I'm too offended by the question
to continue with the poll
2. Have you ever had a sexual
relationship with aformer client?
yes
no
yes
yes
Ma,' ., lb••omm••ts , ..I I. wllb ' " p.1I ",. tbl.g. /Ik. "/I
IP/IUfIIlIero II • "ri_ ....,. ~rdy " " , "''', " ,,"""" 10
IlIe _IMI. S""" rnpoIIdMD .110 Ion
1I_ld hi _Ir
I.r ..' .... 10 meb
dtd ••, .l1Ind.
yes
no
8. Do you think a rule should be made
simply stating that lawyers are not
allowed to continue representing a
client if the sexuai relationship causes
the lawyer to perform legal services
incompetently? (California)
yes
no
9. Do you think the Arkansas Supreme
Court should amend the rules of
professional conduct to include a rule
against such relationships?
yes
no
no
4. Do you think it is acceptable 10 have
sexwijh a former client?
yes
no
7. Do you think a rule shouid be made
simply stating that lawyers are not
allowed to require sex as a condition of
representation? (California's rule)
__ none of your business,
but I'll answer the rest of the poll
__none of your business and
I'm too offended by the question
to continue with the poll
no
6. Do you think the lawyer should be
required to inform the client in writing
of how a sexual relationship between
himlherself and the client could affect
representation? (Oregon's rule)
1. Have you ever had a sexual
relationship with a client while you
were representing them?
70% No
I'."",,,,,._ ./rI.,1IMy""t
5. Do you think there should be a rule
against lawyers CONTINUING to have a
sexual relationship with someone who
has SUbsequently become aclient?
3. Do you think it is acceptable to have
sex with acurrent client?
14. Do 'OU IlIlnk our syst.m JUIlI.. h•• be.n dllll. m'lor blow
by lIle ..Ie.... ol_. casn?
38% Yn
The Arkansas Lawyer
/rom,., Spri", 19t3
_.. WII*,.,
",,,,1IIIy ..mHrl.. "".61_"
4,ZDtJ, 11111 11._" "'" •• ,",",II ...,."..,,., " ' _ "
. . II 1101 I",.nhd I.
'1#11. T1Ie FAX PolIlZiItI I. "..,d•
• _ , lor "Id." 10 ..1.,1II.'r
d I.
dllaJlllon on
10. Do you think the American Bar
Association should make a rule against
such relationships?
no
FAX this completed sheet to:
The Arkansas Lawyer at 375-4901
or mail 10 400 W. Markham, little Rock, Arkansas 72201
yes
no
A Big Bang
for your Buck
By Paige Markman
At the Bar Association, it is rare that we really "toot our own hom," but as you all send in your dues
with the increase, I think it's a good lime for us to remind you what you receive for those hard-eamed
dollars. You may know what you receive, butI'd like for you to take a minute to really think about it.
As lawyers, you are involved in law-making on a day-to-day basis in one way or another. Through the
Bar Association, you are able to speak as a group, and power comes with numbers. As a legislative
interest, the Bar Association influences our lawmakers often and the decisions they make affect you all in
a very direct way. Being a member uf the Bar Association means that you contribute to making laws that
will protect the people of Arkansas. That's important.
Another rarely thought of advantage of being a member of the Association is having a forum to discuss
your ideas, meet other lawyers who may become business associates or friends. Being able to meet and
work with your peers is also important.
As stated earlier, power comes with numbers. Being a member of the Bar Association helps you to find
lower insurance rates through this large group. It entitles you to discounts on car rental, mailing services
and low interest rate creclit cards. Isn't it worth your dues when you add up what you save on these
things alone?
The publications you receive from the Association can be a vital source for your practice. The systems
and handbooks are unmatched in this state for providing information and forms for Arkansas attorneys.
Both wtiversity law schools are able to publish informative journals because of the Bar Association. The
NEWSBULLETIN keeps you up to date on what your Association leaders are doing on your behaU,
upcoming CLE seminars and Association business you need to know.
And this magazine can be a tool too. (You knew I'd get to that) Take this issue for example. The
Developing Law article thoroughly analyzes the new Family Leave Act of 1993. This act will affect each
and every lawyer in the years to come, be it a client who comes in with a discrimination suit or you or
your spouse needing to have lime off to care for a family member. Keep this article - you will probably
need it! In the cover story you can learn more about your new President. If you want sometlting done by
the Association, you need to know him. There is a special tribute to Charles Eichenbaum in the
memoriam column. Those who knew him ,viii enjoy reading it and reflecting on their experiences with
this long-lime leader in the Association. There is an article detailing the new Workers' Compensation Act
with side bar articles responding to the act on how it will affect no only workers' comp lawyers, but
general practitioners as well. Phil Pesek's analysis of the bill is artful and the responses from Joe Purvis
for the respondent and Zan Davis for the claimant are worth reading for sheer entertainment if nothing
else. In addition, we have the second part of a article on Video Depositions in tltis issue. It truly is a
"general practitioners primer" for using tltis state-of-the-art trial aid. These are just some of the articles in
this issue. All of the articles are well written, informative pieces that you could need to refer to tomorrow
or the next day.
So the question becomes, "Is it worth the money? Can I get these services anywhere else?" I think it is
worth it, and to my knowledge there is no other place you can get all of these services for such a relatively
small price. Enjoy your Association, and feel good about your decision to pay your dues -- they'll payoff
for you all year!
4
ARKANSAS LAWYER
SUMMER 1993
VOLUME 27, NUMBER 3
PUBLISHER
Arkansas Bar Association
EDITOR & ART DIREcrOR
Paige Markman
Director ofPRIMarketing
ARKANSAS BAR ASSOCIATION
400 W, ~Iarkham
Little Rock. Arkansas -no I
OFFICERS
President
E. Lamar Pettus
President-Eleer
Robert L Jones III
Immediate Past President
John p, Gill
Secretary -Treasurer
jeaneue L. Hamilton
Executive Council Chair
Russell Meeks m
Executive Director
WiUiam A. Martin
In This Issue:
4
Letter from the Editor
7
Letters to the Editor
8
The Developing Law:
The Family & Medical Leave Act of 1993
12
Disciplinary Actions
20
The New Workers' Compensation Law:
What Happens Now?
By Philip Pesek
With Comments from Joseph Purvis, Zan Davis and Rick Holiman
Assistant Executive Director
Judith G..y
EXECUTIVE COUNCIL
Joe Benson
William Clay B"",i1
Thomas M. Carpenter
Michad H, Crawford
Boyce R. Davis
Wendell L. Griffen
David K. Harp
Dave W. Harrod
Charles L. Harwell
Don Hollingsworth
Henry C. Kinslow
Robert Lynn Lowery
Jerry C. PoSt
Donald p, Raney
Teresa M. Wineland
EX-OFFICIO
E. Lamar Pettus
Robert L. Jones III
John p, Gill
Jeanette L. Hamilton
Russell Meeks III
Brian Ratcliff
The Arkansas Lawyer (USPS 546-040) is
published quarterly by the Arkansas Bar
Association. Second class pa;tage paid at Uttle
Rock, Arkansas. POSTMASTER: send address
changes to The Arkansas Lawyer, 400 West
Markham, Little Rock, Arkansas 72201.
Subscription price 10 non-members of Ihe
Arkansas Bar Association $15.00 per year and to
members $10.00 per year included in annual dues.
Any opinion expressed herein is Ihat of Ihe
author, and not necessarily that of the Arkansas
Bar Association or The Arkansas Lawyer.
Contributions 10 The Arkansas Lawyer are
welcome and should be sent in two copies 10
EDITOR, Atbnsas Lawyer, 400 West Markham,
Little Rock, Arkansas 72201. All inquiries
regarding advertising should be sent 10 The
Arkansas Lawyer at the above address.
By Paige Markman
By John T. Shannon
---
28
30
32
CLE Division Report
President's Message
By Deb Garrison
By Lamar Pettus
-------
Cover Story:
Getting Down to Business with Lamar Pettus
By Paige Markman
38
Law Practice Management
By Jerry Schwartz
39
Law, Literature & Laughter
By Victor A. Fleming
40
Third Party Legal Opinions:
Has Some Order Come Out of the Chaos?
By Christopher Barrier &
John S. Selig
-----
44
Let Your Fingers Do the Walking:
Communities Give Feedback in Pretrial Services
50
In Memoriam
51
Young Lawyers' Section Column
52
53
Law School News
56
General Practitioners Primer
Effective Video Presentation at Trial:
By Steven W Quattlebaum
Put on a Good Show, But Cut to the Chase
(Part II)
Law Office Technology Review
By Judy Camp
By Brian Ratcliff
By Barf}' D, Bayer & Benjamin H, Cohen
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LETTERS
Dear Editor:
I think that the Rodney King fiasco
represented an unfortunate lesson in
how little society has progressed over
the years. I submit that "he who is
without faulr' should cast the first stone
at the judicial system.
Had he not chosen to exploit the
situation for financial gain, perhaps
Rodney King might be the most likely
candidate. After all, he was the one who
was initially injured in the affair.
However, his background and the
apparent circumstances surrounding his
arrest (though not justifying the beating)
would tarnish his right to cast judgment
on our system.
At first glance, the person who
filmed the video might seem to be a
good choice.
He/she certainly
precluded any cover-up of the incident
and undoubtedly limited the possible
explanations for King's injuries.
Nonetheless, it is extremely difficult to
praise one who stood by filming the
unwarranted beating of a human being
rather than making some effort to stop
the incident. Further, it would seem that
person made a "bee line" to the
commercial press rather than to King or
his criminal defense lawyer. Although
some journalistic award might be in
order, this person should not condemn
our system.
I think we can rule out the police
officers without further comment. The
next link in the chain would be the
members of the press who, for now, I
will pass.
Surely the "viewing public" is
entitled to cast that stone because they
had absolutely no connection with the
incident Our only fault is that we have
such an intense desire to be entertained
by real life events (especially tragedies)
that we make it commercially profitable
for individuals to film rather than stop
beatings; we have let the networks
provide us with entertainment under the
guise of reporting the news (while
making a few bucks on the side);
comedians viewed the tragedy and even
gave us humor; some minorities used
the incident as an excuse for
perpetuating fears of discrimination and
racial hatred; red necks found the
violence to be somehow justified; and
Some area residents labeled their own
illegal acts (e.g. burning. looting and
TO
THE
EDITOR
beatings) as justifiable retaliation. The
"public" cannot, however, condemn the
system because it was their outcry for
"justice" (whatever that is) that prompted
a second trial of the same individuals for
the same acts. The public is not justified
in criticizing a system whose first decision
was discarded merely because its verdict
failed to cleanse the collective soul of a
nation.
Without regard to the legal
justification for two trials against the same
persons on the same facts in different
courts, it was wrong of the public to
demand another trial. It was wrong of
those who did not attend the first trial to
summarily reject its verdict and place
defendants in what practically, if not
legally constituted double jeopardy. It
was wrong of the public to sit like
vultures waiting for jurors to "do the right
thing" and convict those who had been
once tried and acquitted. Having unduly
influenced the judicial process, the
"public" is not in a position to criticize the
system.
That brings us back to the members of
the press who turned a single incident
involving an apparent breach of local laws
into a national media event. Granted, the
incident was, at first, newsworthy. If the
press did not report such matters, it might
condone such violence and remove a
needed feeling of supervision from law
enforcement officers inclined to engage in
such activity. However, in its quest to
publicize one single crime for monetary
gain, the press gave additional
momentum to those who promote racial
hatred as well as to persons who are too
eager to criticize law enforcement officers,
lawyers and the judicial system.
I have intentionally omitted lawyers
and judges from this analysis - first
because we are members of the "public"
and were included in the previous
discussion. More importantly, comment
shouJd not be made until it is determined
whether we can look beyond the media
"hype" and learn anything from this
situation in our future administration of
the "system."
Who can cast that first stone and
condemn the system? I submit that there
is no one who is qualified. Perhaps if
those who drafted our constitution were
around today, they might be fit to criticize
their own system. They would probably
be more concerned, though, with the
modifications we have made over the
years and with our administration of the
system which they created.
Your FAX poll asked whether our
system of justice was dealt a major blow
- it was, but not because of the outcome
of these cases. The underlying problem
is more serious than could ever be
created by two trials. That the two cases
ended differently only shows the
existence of a problem; it is not the
problem ilsell. The damage was caused
when the blindfold failed to obscure the
vision of the one who holds our scales of
justice.
Stan Rauls
Litlle Rock
P. S. Don't "Lose the FAX Poll!"
Dear Editor:
I wish that you had included a
question in the FAX Poll about the way
the trial judge in the criminal trial of the
officers accused of using excessive force
against Rodney King behaved. His
decision to move the trial to Simi Valley
from the Los Angeles area virtually
guaranteed verdicts that wouJd be more
sympathetic to the officers than
responsive to the proof. And I also wish
that the FAX Poll could have
accommodated questions about the
prosecution strategy in the criminal trial
of the officers in state court.
It is too early to determine whether
justice will be served in this case. Courts
and lawyers should use the case as an
object lesson about the prevalence of
racial prejudice by law enforcement
officials and the degree to which the trial
process can be influenced by judicial
bias as well as pretrial publicity. It
would be wonderful if the profession
would look at the trials, the Los Angeles
riots, and re-visit the 1968 Kerner
Commission Report on Civil Unrest in a
holistic perspective.
Finally, thanks for your touching
remarks about Rodney Slater's service to
the profession and the loss of his
presence and service as SecretaryTreasurer of the Bar Association.
Wendell L. Griffen
LillIe Rock
•
e amI an
8
ARKANSAS LAWYER SUMMER 1993
•
e Ica
On February 5,1993, just weeks after his
inauguration, President Clinton signed into law
the Family and Medical Leave Act of 1993
("FMLA"). Eight years and two sustained vetoes
in the making, FMLA establishes another
minimum standard for employment: the right to
take 12 weeks of unpaid leave annually for
family or medical reasons and later to return to
the job. The purpose of this "family values"
legislation is to balance the demands of the work
place with the need of families. Unlike the
Americans with Disabilities Act (the "Disabilities
Act") which became effective two years after
enactment,
FMLA is on a fast-track to
enJorcemenl. The Department of Labor ("DOL")
was required to publish regulations by June 4,
1993, and the leave provisions are to take effect
on August 5, 1993.
The lime is now for
employers to review manuals and policies to
determine what steps must be taken to comply
with FMLA.
The purpose of this article is to provide a
broad review of FMLA leave provisions.
Statutory citations are to the Public Law. The key
source of legislative history is Senate Report No.
103-3, from the Labor and Human Resources
Committee (the "Senate Report").
SUBSTANTIVE LAW
The essence of FMLA leave requirements is
represented by the following five elements:
(I) An employer
(2) must grant
(3) family and medical leave
(4) to an employee
(5) without discrimination.
FMLA ยง 102. This basic law is designed as "a
sensible response to the growing conflict between
work and family by establishing a right to unpaid
family and medical leave for all workers covered
under the act." Senate Report at 4.
Let's develop the five elements of FMLA's
leave provisions.
eave ( 0
by
John T. Shannon
(1) What is an employer?
Generally, FMLA covers any business with 50 or more
employees. FMLA § 101(4). However, the 50 or more
employees must be located at a work site or within 75 miles of
the work site. For instance, a corporation with thousands of
employees may have an isolated facility with 30 employees at
Arkadelphia. As to the Arkadelphia work site, FMLA does not
apply. Realistically, employers with multiple work sites
probably will adopt uniform standards to encourage internal
mobility. Schools, public agencies and churches are not exempt.
(2) Is granting leave discretionary?
Eligible employees are entitled to leave. FMLA §102(a)(1).
Employers may require that employees submit a "request for
leave" form, but FMLA does not provide the "he failed to
submit the proper paperwork" defense.
(3) What is family and medical leave?
The heart of FMLA is the leave
requirement set out at §102. Employees are
entitled to 12 work-weeks of leave during any
12 months. Leave may be without pay.
FMLA §102(c). Generally, the employee may
elect or the employer may require the
employee to exhaust all accrued "leave with
pay" in substitution of FMLA leave, with
additional time granted if needed to meet the
minimum 12-week requirement. FMLA
§102(d). FMLA leave is not a "qualifying
event" under the health benefit provisions of
COBRA. However, it is a qualifying event
when it becomes known that an employee on
FMLA leave will not be returning to work.
Senate Report at 31.
(A) Family Leave: The employee
may take family leave for the birth, adoption
or placement of a child and in order to care
for the child. FMLA § 102(a)(1)(A) and (8).
Male and female employees equally are
I
entitled to family leave. However, the right
U
to family leave is of the "use it or lose it"
variety. The entitlement to leave ends 12
months after the birth or placement or the
child. FMLA §102(a)(2). If spouses are
employed by the same employer, the
employer may limit the spouses to an aggregate of 12 workweeks of family leave. "Aggregate leave" is intended to
eliminate any employer incentive to refuse to hire married
couples. FMLA §102<O. If the employer and employee agree, the
employee may take family leave intermittently or work a
reduced schedule. FMLA § 102(b)(1). If the need for family
leave is foreseeable based on an expected birth or placement,
the employee must give the employer at least 30 days notice.
FMLA § 102(e)(1). Lf the employee is unable to give 30 days
notice, the employee must give "such notice as is practicable."
Id. The notice requirement is consistent with Congress's desire
to provide leave in a manner that accommodates the legitimate
interests of employers. FM LA §2(b)(3).
(8) Medical Leave: An employee is entitled to medical
leave to care for a spouse, son, daughter, or parent with a health
condition, or if a serious health condition makes the employee
unable to do his job. FMLA § 102(a)(1)(0 and (0). A "serious
health condition" is a physical or mental condition that involves
inpatient care or continuing treatment. FMLA § 101(11). A
condition which chronically impairs the employee's or family
member's ability to engage in routine activities is a serious
health condition. Examples include leave to take care of a
spouse with Alzheimer's disease, who has suffered a stroke, or
clinical depression, or who is recovering from major surgery, or
is in the final stages of a terminal illness. Senate Report at 23.
However, when an employee catches the flu or the school nurse
calls to report that your child has a fever, Congress intended
that such conditions faU within most sick-leave policies.
Medical leave may be taken intermittently or on a reduced
work schedule when medically necessary without the
employer's approval. FMLA § 102(b)(1). If the employee
requests intermittent leave or a reduced work schedule that is
foreseeable, the employer may require the employee to transfer
temporarily to another job. FMLA §102(b)(2). The employee
selects the work schedule, but the employer identifies the
position best able to accommodate work disruptions. The
altemative position must provide equivalent compensation. Jd.
If the need for medical leave is foreseeable,
the employee must try to schedule treatment
so as to reduce disruptions at work. The
employee must also give the employer at
least 30 days notice of his intention to take
foreseeable medical leave. If the employee
cannot give 30 days notice, the employee
must provide "such notice as is practicable."
FMLA §102(e)(2). In addition to notifying the
employer of foreseeable medical leave,
employers may require that requests for
med icaI lea ve be su pported by a certification
of the serious health condition. FMLA §
103(a). The certification must state that the
employee is needed to care for a son,
daughter, spouse or parent or that the
employee is unable to work. FMLA §103(b).
Certification is designed as a check against
employee abuse of leave. If the relationship
between the employer and the employee is
established
on the bedrock of mistrust, and if
l
the employer questions the validity of the
certification, the employer may demand a
il
second opinion. The employer must pay for
the second opinion. FMLA §103(C). FMLA
has a tie-breaker provision if the first two
medical opinions conflict: the employer may
demand a third medical opinion, also paid by the employer.
FMLA § 104(d). Finally, at the employer's expense, the
employer may require periodic reports on the health status and
the employee's intent to return to work. FMLA § l03(e). OOL
regulations may attempt to draw the line between reasonable
recertifications and badgering the employee.
(4) Who is an eligible employee?
FMLA provides a two-prong test of tenure to determine
whether an employee is entitled to leave. First, the person must
have been employed by the employer for at least 12 months.
The 12 months need not be consecutive. Second, the person
must have been employed for at least 1,250 hours during the
previous 12 months. FMLA § 101(2). The purpose of these
conditions is to exclud~ part-time or seasonal employees.
However, an employee working only 25 hours per week and
taking a nvo-week vacation during the previous year is eligible.
(5) What is leave discrimination?
The general entitlement to family and medical leave is of
little value if the employer may impose a cost on the employee's
exercise of the FMl.A right. FMLA provisions are designed to
protect employees who exercise leave rights. Upon an eligible
"Male and
f male employees
equallyar entitled
to family leave.
However, the
right to family
I ave is of the
e it or lose it
yarle ty
10
ARKANSAS LAWYER
SUMMER 1993
contribution. FMLA§ 104(c)(2). The concept of recapturing an
employee's return from family or medical leave, the employee
employer's portion of the premium is intriguing because
is entitled to be restored to his old job or to an equivalent
employers usually pay premiums to the insurer, not to the
position. FMLA § 100(a)(I). "This provision is central to the
employee. DOL regulations may aUow employers to recapture
entitlement provided in this bill." Senate Report at 28.
premiums from employees as a set-off to severance payor a
Reinstatement to a comparable or similar position is
final pay check, or by a garden variety debt collection action.
insufficient. The standard of "equivalent" requires
reinstatement to a job with the same duties, terms, conditions
and status. Restoration to a less than equivalent position would
ENFORCEMENT AND REMEDIES
deter employees from exercising their FMLA rights. Id. Two
Employers are required to maintain records pertaining to
categories of employees are exempted from guaranteed
compliance with FMLA in accordance with regulations to be
restoration.
issued by the DOL. Aggrieved employees have a private right
First, an employer may refuse to reinstate the highest paid
of action. FMLA § 107(a). The law aUows double damages for
ten percent of its employees within 75 miles of the work site.
lost wages and benefits or actual monetary losses, such as the
FMLA §I04(b). Congress deemed these highly compensated
cost of providing care, with interest. To avoid double damages,
employees to be at the executive level whose management skills
the burden is on the employer to prove that it had reasonable
and vision are crucial to the employer. However, employers
grounds for believing that its act or omission did not violate
may not arbitrarily refuse to restore its
FMLA. FMLA § 107(a)(I)(A). The employee
executives. The denial must be necessary to
may also sue for equitable relief, including
prevent substantial economic injury to the
reinstatement.
FMLA § 107(a)(B).
business. FMLA §I04(b)(I). This is a limited
Employees may file their actions in any
exception to the entitlement to job restoration.
federal or state court of competent
Employers using this exception should
jurisdiction. FMLA § 107(a)(2). [n any action
carefuUydocumentthreethings: the basis for
OC
in which the plaintiff prevails, the court is
the determination that denial of job
required to allow a reasonable attorney's fee,
restoration is necessary, the extent of the (termination demotion expert witness fees and costs . FMLA §
anticipated grievous economic injury, and the
'
, 107(a)(3). Fee amounts are dIscretionary. The
causal relationship between the requested
.
DOL may inv-:stig~te and. attempt to resolve
reprl ma n
FMLA complamts JUSt as It would under the
leave and the potential
Second, school teachers are partially
Fair Labor Standards Act ("FLSA"). The
exempted from the right to job restoration.
DOL may also bring an action and pay any
Schools may extend a teacher's unpaid leave
I
sums recovered directly to each affected
to the end of an academic term in order to
employee. FMLA § 107(b). Although FMLA
avoid disruption in the classroom. FMLA
0
is silent on the issue of the right to a trial by
§108(d). Restoration of teachers will be
Jury, the remedIal prOVISIons of FMLA
governed by local school board policies.
paraUel the remedies provided by the FlSA,
FMLA § 108(e). When a teacher needs to be
am I
me ICO
which allows jury trials. The limitations
repeatedly away from school because of
period is two years after the date of the last
recurring medical treatments, the school may
event constituting the violation. The
require that the teacher choose between
IS
limitations period is three years if the
taking off a block of time or being transferred
violation is willful.
temporarily to a position that better
0 OW
accommodates the absences. Senate Report at
CONCLUSIONS
35.
early 30 states have enacted family and
Taking leave will not result in the loss of any employment
medical leave acts, and employers in those
benefit accrued before leave. Employees are not entitled to
states have not experienced great disruptions in their
accrual of any seniority or employment benefits during leave.
businesses. FMLA creates new posting and record keeping
FMLA § 104(a)(3). Accordingly, an employee on FMLA leave is
requirements. FMLA requires employers to grant extended
not entitled to unemployment compensation. Employers may
leave without pay and later to reinstate those employees. Any
require that employee be certified as able to return to work
negative job action (termination, demotion, reprimand) taken in
before restoring the employee to his fonner job or an equivalent
response to a request for family or medical leave is grounds for
position. FMLA § 104(a)(4). Post-leave certification of ability to
a lawsuit leading to double damages, attorney's fees, expert
return to work does not allow an employer to require medical
witness fees and costs. Employers should revise personnel
examinations that otherwise would violate the Disabilities Act.
manuals and policies to reflect the new, federally established
Senate Report at 36.
and guaranteed right to family and medical leave.
The employer must maintain coverage under any group
-health plan during leave under the same conditions as if the
John T. Shannon is an associate with the Lillie Rock law firm of
employee had continued working. FMLA § 100(c). Throughout
Williams & Andersen. His primary areas of practice are commercial
leave, the employer must continue to make whatever
and environmental litigation and employment law.
contributions it had been making, and the employee must
continue to make any contributions that he had been making.
Arkansas Code Annotated $990
When must the employee on leave remit his contributions? If
the employee fails to remit his contribution in a timely manner,
Terms available. Call tor tree
can the employer drop the employee from the group plan? The
DOL is likely to regulate these issues. If the employer pays its
catalog, Allin R. Jones, Michie Co.,
share of the group health plan premium and the employee then
1-800-448-5110.
fails to return to work, the employer may "recapture" its
IIAn y nego tive
b t-Ion
JO
d)
ta ken .n res ponse
f
to request or
f _I y or d_ I
I ove - groun ds for
I
I
su it ..
DISCIPLINARY
JIMMY DALE TATE, JR.
Upon recommendation of the
Committee, on February 22, 1993, the
Arkansas Supreme Court accepted the
surrender of the license of Jimmy Dale
Tate, Jr., of Fayetteville, Arkansas, to
practice law in the State of Arkansas.
Mr. Tate was charged with public sexual
indecency but entered a nolo cOlltel1dre
plea to the reduced charge of disorderly
conduct in the Municipal Court of
Fayetteville,
Arkansas.
Upon
notification of the Committee's decision
to institute disbarment action against
him, Mr. Tate elected to surrender his
license in lieu of formal proceedings.
Mr. Tate admitted in his petition for
surrender that his conduct violated
Model Rule 8.4(b).
BARRY
J. WATKINS
Upon recommendation of the
Committee, on March 29, 1993, the
Arkansas Supreme Court accl::pted the
surrender of the license of Barry J.
Watkins, Springdale, Arkansas, to
practice law in the State of Arkansas. On
or about November 14, 1992, Mr.
Watkins was served with three formal
complaints by the Committee. In the
first formal complaint against Mr.
Watkins,
attorney
Mel
Sayes
represented Security Pacific Housing
Services, Inc. Mr. Sayes filed a replevin
action on behalf of his client on February
20, 1992. Mr. Watkins filed an answer
and objection to the replevin on behalf of
his clients. Mr. Watkins stated that
payment of the arrearages had been
received; however, Mr. Watkins never
remitted the same. A check was received
from Mr. Watkins on July 27, 1992,
drawn on Mr. Watkins' account but the
check was dishonored for insufficient
funds. Mr. Watkins promised to make
the check good, but had failed to do so
at the time of the filing of the formal
complaint. Mr. Watkins' affidavit of
response indicated that the aUegations
of the complaint were basically accurate
and that the delay was caused by his
clients' failure to deliver the funds to his
office and then, subsequently, poor
accounting on his part that caused a
shortfall in his trust account. Mr.
Watkins paid Mr. Sayes on November 2,
1992.
12
ARKANSAS LAWYER
SUMMER 1993
ACTIONS
I
ADVISORY
In the second formal complaint,
Robert and Rhonda Wagner purchased
land from Harold Roberts who had
purchased the property from Leora
Delozier under a sale contract in which
there was a balance still owing. Mr.
Roberts fell behind in his payments and
Ms. Delozier filed suit against both Mr.
Roberts and the Wagners. Mr. Watkin
was hired by the Wagners, and he filed
an answer on their behalf. Subsequently,
the Wagners purchased Ms. Delozier's
interest and assumed a first mortgage
position. Soon after, Mr. Roberts died.
Mr. Watkins assured the Wagners he was
negotiating with the heirs but would
pursue a foreclosure action if the heirs
could not agree to come to a settlement.
Mr. Watkins then indicated he had filed a
foreclosure action and advised the
Wagners of an auction date which he
later said was cancelled and rescheduled.
Mr. Watkins subsequently informed the
Wagners that the heirs had settled and
that the judge would sign a deed the
following Monday. Mr. Watkins never
prod uced the deed, and the Wagners
OPINIONS
I learned that the case had previously
I
been dismissed. The Wagners also
discovered that Mr. Roberts only had
one heir and that the attorney for Mr.
Roberts's estate had sent several letters
to Mr. Watkins in an attempt to settle
with no response from Mr. Watkins. In
his affidavit of response, Mr. Watkins
responded that the facts of the complaint
were basically true. He stated that he did
not bill for services not performed and
that he had refunded $500 of fees to the
Wagners. Mr. Watkins apologized to the
Wagners and delivered their files to the
attorney of their choice.
In the third formal complaint,
Kenneth Schwind hired Mr. Watkins to
file bankruptcy on his behalf for a fee of
$120 down and the balance on an
installment basis. From ovember to
February of 1992, Mr. Schwind was
informed by Mr. Watkins of various
hearing dates which never actually took
place. On March 19, 1992, Mr. Schwind
picked up his file and was assured by
Mr. Watkins that his bankruptcy was on
its way to Little Rock. Mr. Schwind's
SESSION SUMMARIES
1993 General Assembly of Arkansas
Here is a two-volume summary of the laws enacted during the
recently-completed session of the Arkansas Legislature. A total of
1,319 Acts were approved and became law immediately (those
containing an Emergency Clause) or will be effective August 13,
1993. These summaries will help you identify new laws and changes
to existing law which may affect you, your business, or your clients.
The volumes are:
GENERAL LEGISLATION
I) Summaries of all non-fiscal bills
FISCAL LEGISLATION
I) Summaries of major fiscal bills
affecting state agencies
which became new law, categorized
2) Projected state revenues for the
by subject
2) Summaries of proposed Constitutional
1995 biennium
amendments referred by the General 3) Revenue Stabilization Law
allocations for 1995 biennium
Assembly to the 1994 general election
3) Indexed by subject
4) Indexed by state agency
Vol. 1 - General Legislation.. . . . . . . . . . . . . . . . . . . . . . .. $25.00
Vol. 2 - Fiscal Legislation
$10.00
Full-text copies of Acts available on request, 25Â˘ per page ($5.00 minimum)
The two volumes are available separately. Add 5.5% Arkansas sales tax.
Arkansas Legislative Digest
1401 West Sixth treet, Little Rock, AR 72201
Phone (501) 376-2843 â&#x20AC;˘ FAX (501) 374-9256
DISCIPLINARY
bankruptcy was never filed. In his
affidavit of response, Mr. Watkins states
that the facts of the complaint were
basically true. Mr. Watkins indicates that
he received no other payment than the
$120. and that he did prepare a petition
which had to be redone because
numerous creditors were omitted. Mr.
Watkins then states that is was at this
point that he failed in his responsibility to
Mr. Schwind.
Upon notification of the Committee's
deci ion to institute disbarment action
against him, Mr. Watkins elected to
surrender his license in lieu of formal
proceedings. In his surrender of license,
Mr. Watkins acknowledged that his
conduct in the above mentioned legal
representations violated Model Rules 1.3,
l.4(a), 1.15(b), 8.4(c) and 8.4(d).
JOHN
F. BUERGLER
Upon recommendation of the
Committee, on May 3, 1993, the Arkansas
ACTIONS
/
ADVISORY
Supreme Court accepted the surrender of
the license of John F. Buergler, Fort Smith,
Arkansas. Two formal complaints were
before the Committee. Brenda Lee Clark
and Paul Franklin Clark's affidavits of
complaint reflect that on April 12, 1989, a
complaint was filed against Brenda Lee
Clark for alleged injuries to a little girl
whom she had been babysitting. Mr.
Buergler had previously been hired to
defend Brenda's brother-in-law against
criminal charges involving the same
matter. Brenda's father-in-law hired Mr.
Buergler on Brenda's behaU. Mr. Buergler
filed an answer on Brenda's behalf on
May 2, 1992. On July 20, 1990, an
amended complaint was filed adding
Brenda's father-in-law as a defendant, and
a copy of the amended complaint was
served on Mr. Buergler. Mr. Buergler was
also hired to represent Brenda's father-inlaw and was paid a total of $21,500 for the
combined representation of Brenda, her
brother路in-law and father-in-law. Mr.
Buergler failed to file an answer to the
amended complaint and a default
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OPINIONS
judgment of $350,000 was entered against
Brenda and her father-in-law jointly and
severally. Mr. Buergler failed to respond
to either of the two formal complaints by
the Committee and on February 12, 1993,
was notified of the Committee's
determination and decision to initiate
disbarment proceedings against him. Mr.
Buergler elected to surrender his license
in lieu of a formal disbarment action. On
April 26, 1993, Mr. Buergler submitted his
petition for surrender admitting that his
conduct violated Model Rules 1.1, 1.3,
1.4(a), 1.4(b), 8.4(c) and 8.4(d).
CLARENCE PHILLIPS
SHOFFNER
Clarence Phillips Shoffner, Searcy,
Arkansas was issued a reprimand for
violation of Model Rules 1.1 and 1.3 as a
result of a complaint by James R. Peacock.
In his affidavit, James R. Peacock stated
that he had discussed with Mr. Shoffner
in early 1992 several impending legal
matters. Mr. Peacock, who was in the
agricultural business, anticipated lawsuits
being filed against him for certain debts
incurred in connection with his business.
On May 6, 1992, Mr. Peacock was served
with two complaints. The Bank of
McCrory sought judgment on certain
delinquent promissory notes, and M. D.
Thompson and Son Company sought
judgment for indebtedness on an open
account. Mr. Peacock stated that the two
complaints were delivered to Mr.
Shoffner's office on or about May 6,1992.
On May 8, 1992, Mr. Peacock sent Mr.
Shoffner a letter along with a check for
$500 as a retainer. An answer to the
bank's complaint was filed by Mr.
Shoffner on June 1, 1992. Although Mr.
Peacock only received a copy of that
answer, he assumed that the Thompson
lawsuit had been answered also.
Thereafter, Mr. Peacock called Mr.
Shoffner's office on several occasions
inquiring about the status of the lawsuits.
He was assured. on different occasions by
Mr. Shoffner or his secretary that both
lawsuits had been answered and matters
were progressing normally. However, Mr.
Peacock later discovered in July 1992 that
the complaint and request for admissions
filed by the Thompson Company were not
answered and a default judgment had
been entered against him. On July 20,
DISCIPLINARY
1992, Mr. Peacock paid $18,576.56 in
satisfaction of that judgment.
Mr.
Shoffner's
response
acknowledged that Mr. Peacock had
consulted him regarding his financial and
farming affairs. Mr. Shoffner stated that
Mr. Peacock came by his office when it
was closed and deposited the complaints
in the mailbox. The two complaints were
together and Mr. Shoffner's secretary
opened a file in the name of the complaint
which was on top, the suit by the Bank of
McCrory. Mr. Shoffner stated that when
he reviewed the file for preparation of an
answer, he carelessly assumed that the
McCrory Bank lawsuit was the only one.
His response denied that Mr. Peacock
ever informed him or his secretary of the
status of two lawsuits ur that he or his
secretary told Mr. Peacock that two
answers had been filed. Mr. Peacock did
not inquire specifically about the
Thompson Company suit, and any
information Mr. Shoffner's secretary may
have given Mr. Peacock related to the
bank case only. Mr. Shoffner's response
stated that he was astounded as much as
Mr. Peacock when it was discovered that
a default judgment had been entered
against him.
ACTIONS
I
ADVISORY
JOHN SKYLAR TAPP
John Skylar Tapp, Hot Springs, was
issued a letter of reprimand for violation
of Model Rules 1.3, 1.4(a) and 8.4(d) as a
result of a complaint by Anthony
Mormino.
In his affidavit, Anthony Mormino
stated that he and his former wife were
divorced in JIlinois in 1981. On January
14,1991, the Illinois court found Mr.
Mormino in arrears on his support
payment for the one child of the marriage
and directed that he satisfy the arrearages
by December 31,1991. The arrearages
were not satisfied by that date.
Subsequent negotiation between the
parties and their attorneys resulted in an
agreement whereby Mr. Mormino was to
pay $5,600 back child support. Mr.
Mormino stated that he resided in
Arizona
and
was experiencing
considerable difficulty and delay in
exercising his visitation rights due to his
former wife's conduct. Mr. Mormino
wired $5,600 to his attorney in llJinois
pursuant to the agreement. At about the
same time Mr. Mormino was due
visitation with his child. According to
him, his former wife caused a delay in the
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14
ARKANSAS LAWYER
SUMMER 1993
OPINIONS
visitation. Mr. Mormino decided not to go
through with the arrangement since he
felt he didn't owe $5,600 and his ex-wife
didn't pennit visitation as agreed.
Mr. Mormino's former wife had
recently relocated in Arkansas, and he
decided to contact an Arkansas attorney.
He contacted Mr. Tapp by telephone and
explained his situation. According to Mr.
Mormino, Mr. Tapp told him that he
could get the jurisdiction changed to
Arkansas, and he felt Mr. Mormino could
get better treatment in Arkansas courts.
Mr. Mormino stated that Mr. Tapp agreed
to undertake the representation for a
retainer fee of $800. That same day, July 7,
1992, Mr. Mormino sent a letter to his
lawyer in Illinois instructing him to return
the $5,600 and advising him of Mr. Tapp's
retention as counsel. The following day
Mr. Mormino received a facsimile
response from the Illinois attorney
advising that he would move to withdraw
from the case but would not return the
monies which he was depositing with the
court for its decision for the proper
disposition of the funds. On July 8, 1992,
Mr. Mormino informed Mr. Tapp by
facsimile transmittal of his former
attorney's actions and requested Mr.
Tapp to stop the deposit of the funds in
the illinois court. Mr. Mormino sent Mr.
Tapp a leiter and a $800 check by Federal
Express on July 9, 1992. On July 17, Mr.
Mormino received a copy of his former
spouse's petition requesting the court
release the funds to her. Mr. Mormino
sent Mr. Tapp a letter the next day
advising him of that development and
inquiring of the actions Mr. Tapp had
taken or would take. He telephoned Mr.
Tapp's office thereafter on an almost daily
basis but was never able to speak with
Mr. Tapp. A hearing had been scheduled
for July 27 on the petition to release the
funds to his former wife. The monies
were released by default. On July 30,
1992, Mr. Mormino wrote Mr. Tapp to
inquire about the situation and expressing
his dissatisfaction with the attorney's
representation. M.r. Mormino stated, that,
following his initial contact with Mr.
Tapp and his payment of the retainer, he
had received no communication from Mr.
Tapp.
Mr. Tapp acknowledged an
agreement to represent Mr. Mormino and
the payment of the retainer fee. Although
he thought that jurisdiction of the
matter could be transferred to Arkansas,
he stated that he did not advise Mr.
(co"ti"ued Oil ptlge 16)
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DISCIPLINARY
Mormino that he could undo the
agreements or proceedings previously
consummated in Illinois. He advised Mr.
Mormino that he was not licensed in that
state and could not represent him there.
Mr. Tapp attempted to contact Mr.
Mormino's former lawyer but later
received facsimile documents which
reflected a rather disagreeable situation
between the attorney and Mr. Mormino.
Mr. Tap? averred that he drafted a
petition to establish jurisdiction in
Arkansas, but it was never filed because
he was never informed whether Mr.
Mormino's ex-wife lived in Hot Springs or
Garland County. Subsequent to the filing
of Mr. Mormino's complaint against Mr.
Tapp, Mr. Tapp refunded the retainer to
him.
GENE A. LUDWIG
Gene A. Ludwig, Little Rock, was
issued a letter of caution for violation of
Model Rule 7.3(c) as a result of a
complaint by Robin Saito.
In her affidavit, Robin Saito stated
that on or about October 12, 1992, her four
(4) year old son, Christopher, was a
passenger in an automobile involved in an
accident. On or about October 21, 1992,
Christopher received a solicitation letter
from the Ludwig Law Firm, bearing the
notation "Advertising Material", and
signed by Mr. Ludwig. On or about
October 23, 1992, Ms. Saito stated that she
phoned the Ludwig Law Firm to question
why such a letter was sent to a four year
old child who was not injured in the
accident. Ms. Saito stated that she spoke
with a Mr. HaJJ at the Ludwig Law Firm
who hung up when she informed him
that the police accident report correctly
reflected Christopher's age and the fact
that he was not injured. Ms. Saito
ACTIONS
/
ADVISORY
maintained that Christopher was not
known to be in need of legal services and,
therefore, should not have been sent such
a letter of solicitation.
Mr. Ludwig's response indicated that
he did mail the solicitation letter to
Christopher Saito and that Ms. Saito did
subsequently phone his office and speak
with Mr. Hall. Mr. Ludwig very hostile,
cursed and used demeaning language and
siad that Mr. Hall did initiate termination
of the call. (51lapero v. Kentllcky Bar
Association, 486 US 466, 100 L. Ed. 2d 475,
108 S. Ct. 1916 (1988) is cited for the
proposition that truthful and nondeceptive letters by lawyers when mailed
to the general public; to those so situated
that they might in general find such
services useful; or to those known to be in
need of legal services in a particular
matter.) Mr. Ludwig stated that even
though the police report indicated that
Christopher was not injured, he may have
sustained
property damage or
Christopher may have realized that he
was injured sometime after the accident.
Mr. Ludwig's response asserts that the
Model Rules of Professional Conduct and
the
courts'
interpretations
of
constitutionally protected speech permit
mailed advertising by lawyers to the
general public or to those persons so
situated that they might in general find
such services useful, as long as the
communication is truthful, non-deceptive,
etc. Mr. Ludwig further recognized that
the more restrictive Model Rule 7.3
requires the words "Advertising
Material"
on
personalized
communications mailed to those known
to be in need of legal services in a
particular matter. The mailing of the letter
addressed to Christopher Saito, which
included the words "Advertising
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ARKANSAS LAWYER
SUMMER 1993
OPINIONS
Material" and offered his legal services to
him, is acknowledged by Mr. Ludwig's
response. Mr. Ludwig concluded by
stating that Ms. Saito, individually and as
parent and natural guardian of her son,
Christopher, could have simply discarded
the letter.
DANIEL
H. HARMO
, JR.
Daniel H. Harmon, Benton, was
issued a lette,r of reprimand for violation
of Model Rule 8A(b) as a result of a
complaint based on conviction of a
criminal offense.
The records of the United States
District Court for the Eastern District
rellect that Mr. Harmon was found guilty
of one count of Failure To File Income Tax
Returns, a Class A misdemeanor. A jury
acquitted Mr. Harmon on three other
counts of the same offense. On July 29,
1992, a Judgment in a Criminal Case was
entered in Case Number LR-CR-91-155,
United States of America v. Harmon,
whereby a special assessment of $25.00
was imposed and Mr. Harmon was placed
on probation for one year with one month
of home detention.
In his affidavit of response and
testimony Mr. Harmon averred that his
tax returns for the years 1985 and 1986
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were being prepared by a CPA to whom
he entrusted his tax records and materials.
The CPA subsequently left the state and
he was unable to retrieve his records.
Another accountant was hired by Mr.
Harmon to prepare returns for the years
1985 through 1988. These returns were not
filed until after April 15, 1989, based on
the accountant's advice because of the
incomplete records for 1985 and 1986. Mr.
Harmon stated that all the returns were
submitted prior to initiation of an
investigation by the IRS. In December
1990, the IRS contacted Mr. Harmon
concerning a tax deficiency. He stated he
contacted them and advised that if they
would calculate the tax due, penalties and
interest owing that he would borrow the
money to satisfy the claim. He stated that
this was not considered by the IRS, and
criminal charges were prosecuted against
him. Mr. Harmon presented evidence that
reflected that the offense for which he was
convicted contained no element of fraud,
but, rather, was based on the untimely
filing of the tax return. Numerous
witnesses appeared on Mr. Harmon's
behalf and offered evidence as to his
character and reputation.
Advisory Opinions
Advisory Opinion 93-01 (March 24,
1993)
In an advisory opinion, the Arkansas
Judicial Ethics Committee stated that a
judge may not serve on an advisory
group for a state hospital program that
provides intensive care for persons who
have been excused from criminal conduct
by reason of mental incapacity.
Advisory Opinion 93-02 (April 6,
1993)
In an advisory opinion, the Arkansas
Judicial Ethics Committee stated that a
part-time municipal judge may not
represent an individual in a domestic
relations matter when the adverse spouse
of that individual has an outstanding fine
balance owed the municipal court over
which the judge presides and may not
represent a client such as a bank in a debt
collection action against an individual
who has an outstanding fine balance with
that municipal court.
Advisory Opinion 93-03 (April 8,
1993)
In an advisory opinion, the Arkansas
ACTIONS
/
ADVISORY
Judicial Ethics Committee stated that a
judge may not participate in a fund-raiser
by managing or playing on a softbaJlteam
that would play against teams of the
executive and legislative branches of state
government
where
the judge's
participation would be highly publicized
and spectators would support their
favorite teams or players by agreeing to
contribute money to the charitable
organization.
Aggressive R L
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Tbe New Worliers'
(o_pensation law:
Wbat Happens Now?
Analysis by Philip Pesek with comments from
Joseph Purvis, Zan Davis and Rick Holiman
The Arkansas Legislature makes changes that will affect the
means by which many lawyers do business in the Natural
State. Read this analysis and commentaries from the
Claimant and Respondent's sides--it might effect you, too.
In january, 1993, the 79th Arkansas
General Assembly sel out to "reform" the
Arkansas Workers' Compensation Law.
The resultant legislation was expected to
be the most signHicant piece of legislation
to come out of the 1993 session. The chief
reasons for the "reform" movement were
increasing workers' compensation
premiums, increasing medical costs,
increasing incidents of workers'
compensation fraud and the continual
expansion of the Arkansas Workers'
Compensation Law by the Administrative
Law judges, the Commission and the
Arkansas Supreme Court and Court of
Appeals.
Prior to the beginning of the 1993
legislative session, an ad hoc committee
was formed by the Insurance
Commissioner, Lee Douglass. The
membership of the committee consisted of
a cross section of the different interests
with regard to workers' compensation
including
representatives
from
management, insurance, labor, the legal
community as well as injured workers.
The Ad Hoc committee was charged with
the task of reviewing a proposed bill
which had been drafted by the Arkansas
State Chamber of Commerce. The bill
proposed massive changes to the existing
law.
As expected, the membership of the
Ad Hoc committee agreed on very little
and the votes on each provision mirrored
the respective labor/management
interests on the committee. However, the
management and insurance interests
carried the majority of votes and the
result of their work was a management
20 ARKANSAS LAWYER
SUMMER 1993
oriented
recommendation. Their
recommendations were included, in part,
in HB 1615 which was introduced by
Representative Mike Wilson early in the
1993 session. The bill was entitled:
AN
ACT
TO
INCREASE
WORKERS' COMPENSATION
BENEFITS FOK EMJ'LOYEES AND
TO SUBSTANTIALLY RESTRUCTURE THE WORKERS COMPE SATIO LAWS TO DECREASE
TO
EMPLOYERS;
COSTS
I CLUDI G ASPECTS OF THE
INITIATIVE BY INSURA CE
COMMISSIONER DOUGLASS
AND PROPOSALS OF AN AD
HOC STUDY COMMITTEE
APPOINTED BY THE JOINT
INTERIM COMMITTEE ON
INSURANCE A D COMMERCE;
THE SAME BEl G ARKA SAS
CODE
SECTIO S 11-9-101
THROUGH 11-9-911; A D FOR
OTHER PURPOSES,
While HB 1615 was being introduced,
several other comprehensive workers'
compensation bills were being introduced
by other interest groups, including labor.
One bill, SB 550, which was a waterdowned version of HB 1615, consisted
only of provisions to which the Ad Hoc
committee agreed.
HB 1615 easily passed in the House of
Representative, but was slowed down in
the Senate, Finally, after much debate and
a number of hurried amendments, the 47
page bill was passed and sent back to the
House. The House conferred with the
Senate and quickly approved HB 1615
despite the repeated objections by labor
representatives, including Bill Becker,
president of the Arkansas AFL/CIO, who,
along with other labor interests,
threatened that if HB 1615 passed, they
would call for a referendum for the
Arkansas voters to overturn it. Despite
their threats, Governor Jim Guy Tucker
signed the bill into law on March 31, 1993.
After reviewing HB 1615, one can
easily conclude that it was very successful
in swinging the workers' compensation
legal pendulum from a liberally construed
act which was sympathetic to workers'
claims and sometimes produced absurd
results to a sbict, unbending act which is
management oriented. HB 1615 can be
divided into five major areas compensability of claim, return of injured
workers to the workplace, workers' health
and safety, health care delivery through
managed health care and determent of
fraud. The purpose of this article is to
review some of the major provisions of
the new Act and discuss its possible
ramifications with regard to the future of
workers' compensation.
WHAT IS A COMPENSABLE INJURY?
In Section 2 of the Act, amending
Ark. Code Ann. § 11-9102, the definition
of "compensable injury" was radically
changed. A compensable injury only
includes accidental injuries caused by a
specific incident with a known time and
place of occurrence. Injuries not caused by
a specific incident are limited to: (l)
injuries caused by rapid repetitive motion
such as carpal tunnel syndrome, (2) back
injuries, (3) hearing loss, (4) limited
mental illness with concurrent physical
injuries, (5) limited incidents of heart
attacks or cardiovascular disease, and (6)
hernias.
Compensable injuries must be
established by medical evidence (stated
within a degree of medical certainty l)
supported by objective findings (findings
not under the voluntary control of the
patient2). Complaints of pain will not be
considered and with regard to ratings to
the spine, straight leg raising tests or
range of motion tests shall not be
considered objective findings.
Compensable injuries do not include
(1) injuries to any active participant in
assaults or combats which either result
from non-employment-related hostility or
animus between the combatants or results
from a deviation from customary duties
including injuries caused by horseplay
(innocent victims protected); (2) injuries
incurred while engaging in recreational or
social activities for the employee's own
pleasure; (3) injuries occurring before or
after the employee was hired or
terminated or when employment services
were not being performed; or (4) injuries
substantially occasioned by the use of
alcohol, illegal drugs or prescription
drugs used in contravention of
physician's orders (includes a provision
for reasonable and responsible substance
testing).
The claimant has the burden of
proving a compensable injury by a
preponderance of the evidence. Where the
injury is not caused by a specific incident,
the claimant must show that the injury is
the major cause (defined as more than
50%) of the disability or need for
treatment.
Once a compensable injury is found,
the claimant is entitled to medical and
temporary disability benefits. Permanent
benefits will only be awarded if the
compensable injury was the major cause
of the disability or impairment even when
combined with a pre-existing disease or
condition or with the natural process of
aging. If a non-work related, independent
intervening cause follows a compensable
injury and causes or prolongs the
disability or the need for further
treatment, the above benefits are not
payable even though the intervening
event was not caused by the negligence or
recklessness of the claimant.
This new definition of "compensable
injury" has raised more concerns among
the labor interests and claimant's
attorneys than any other provision in the
new Act. It is easy to see why they are
concerned. If an employee cannot point to
a specific time and place of the injury, he
will not receive benefits unless the injury
fits in one of the enumerated categories of
exceptions to this specific requirement.
The types of injuries which do not fall
within either category are degenerativetype injuries to the arms, hands, neck
(unless you consider this part of the back),
legs or knees.
Even if the employee can point to a
specific time or place of injury, soft tissue
injuries as well as other types of nonspecific injuries such as back sprains will
not be compensable because pain will not
be considered in determining physical or
anatomical impairment. In addition,
straight leg raising tests and range of
motion tests have been specifically
excluded from "objective findings."
Section 2 also accomplishes the task
of overtu.rning a series of cases which had
resulted in absurd holdings. 4 In fact, it
specifically amends §11-9-102(5)(C) to
slate that "[alny and all prior decisions by
the Commission and the Courts
inconsistent with the definition of
compensable injury as herein set forth are
hereby specifically annulled, repealed,
and held for naught."
Exclusivity
Section 4 amended Ark. Code Ann.
§11-9-105(a) to broaden the scope of the
exclusivity of the remedies of the
Arkansas Workers' Compensation Law.
In combination with Section 6, which
amended Ark. Code Ann. §11-9-107,
Section 4 reemphasized that exception to
the exclusivity doctrine should not be
broadened by the ALls, the Commission
and the Arkansas courts, and specifically
overruled three cases which had done so.5
In addition, Section 4 added prime
contractors to the list of benefactors of the
exclusivity doctrine. Arguably, this
addition may be unconstitutional under
Art. 5, §32 of the Arkansas Constitution6
because the legislature can only limit the
amount of recovery where the
employer/employee relationship exists?
Ordinarily, prime contractors are not
considered employers of the employees of
subcontractors even though they are
ultimately responsible, pursuant to Ark.
Code Ann. §11-9-402, for the payment of
workers' compensation benefits to these
same employees when the subcontractor
has not obtained coverage.
FINES, PENALTIES
AND PROSECUTIONS
Throughout the new Act, the General
Assembly provided increased fines and
penalties and increased the criminal
aspect of violations from misdemeanors to
Class D felonies. An employer can be
fined up to $10,000 and subject to a Class
D felony conviction for willful
misrepresentation with regard to the
decrease or defeat of a claimS; for wiUfuI
discrimination against an employee on
account of the filing of a workers'
compensation claim 9; failure to secure
workers' compensation coverage 10 ;
refusal to provide employer reports ll ;
failure to implement a safety program, if
found to be an extra-hazardous
employer 12; and failure to pay timely
benefits. 13
At first blush, these increased
penalties, fines and prosecutions should
prompt any employer or carrier to refrain
from contesting many facially-legitimate
claims. However labor interests and
claimant's lawyers complain that
increased fines and penalties will have no
effect on the employers and carriers
because the old penalties, fines and
prosecutions were never enforced.
MENTAL AND
CARDIOVASCULAR INJURIES
A mental injury is not compensable
unless it is accompanied by a physical
injury to the employee's body except
where the claimant is a victim of a oime
of violence. If a physical injury has caused
the mental injury, the mental injury must
be diagnosed by a licensed psychiatrist or
psychologist and the benefit shall be
limited to 26 weeks. Death caused by a
mental injury is not compensable unless
the death occurred within 1 year from the
incident causing the mental injury.
As a result of the amendments
proposed by Section 8 to Ark. Code Ann.
ยง11-9-109, it will be very difficult to prove
that a mental injury is a compensable
injury. As stated above, mental injuries
are only compensable if accompanied by a
physical injury. An argument advanced
by the labor interests during the debate of
HB 161S stated that Section 8 would
preclude a fireman or a police officer from
recovering benefits for psychological
trauma. Without any accompanying
physical injuries, they were probably
right. To add insult to injury, even if a
mental injury is accompanied by a
physical injury, the benefits are limited to
26 weeks.
A
cardiovascular,
coronary,
pulmonary, respiratory or cerebrovascular accident or a heart attack is only
compensable where the accident was the
major cause of the physical harm. The
injury or disease is not compensable if it i...
shown that the work causing the injury or
disease was not extraordinary and
unusual to the employee's normal work
or there is an absence of some unusual or
unpredicted event. Stress will not be
considered a relevant factor.
Section 8 made it almost impossible
to receive benefits for a heart attack. Most
previous heart attack cases in which
benefits were paid considered stress in
assessing the causation of the
compensable injury. Under Section 8,
stress no longer will be considered. In
addition, it must be shown that the
claimant was involved in an event that
was unusual and extraordinary from his
normal job. Therefore, if a claimant's
normal job involves lifting 50 pound
drums, he will not be entitled to benefits if
one day he has a heart attack while lifting
those same 50 pound drums, even though
he was under considerable stress due to a
tight deadline for shipping those same
drums.
THIRD PARTY LIABILITY
A claim under the workers'
compensation law will not affect the right
of an employee to bring an action against
a third party for those same injuries. As
stated above, a prime contractor is not
considered a third party when being sued
by an employee of a subcontractor. The
employer is entitled to notice of the action
22
ARKANSAS LAWYER
SUMMER 1993
and the opportunity to join in the action.
If the employer joins in the action and the
claimant prevails, the employer is entitled
to a 1st lien of 2/3 of the net proceeds
recovered.
An employer liable for compensation
also has the right to maintain an action in
tort against a third party responsible for
the injury to his employee. The employer
must give notice to the employee that he
has the right to hire an attorney to
represent his interest. The employee is
entitled to any damages recovered after
the cost of collection and the amount the
employer paid for compensation has been
deducted. In no event .hall the employee
recover less than 1/3 of the amount
recovered from the third party.
Under the new language of Section
14, which amends Ark. Code Ann. ยง11-9410, notice of settlement of a third party
action, whether maintained by the
employee or employer, must be given to
all parties with an interest in the claim.
Does "all interested parties" include
insurance carriers, unpaid medical
providers, disability insurers, medicaid
providers,
the
Social
Security
Administration or anyone who has paid
benefits or provided services to the
claimant?" Or, does "interested parties
mean only persons who have intervened
in the third party law uit. The distinction
is very important.
In another new provision to Ark.
Code Ann. ยง11-9-410, an employer liable
for compensation may also maintain a
third party action against the employer's
uninsured motorist coverage. The
purpose of this right is to prevent a
double recovery by the claimant.
REHABILITATID
One of the main purposes of the
workers' compensation "reform" was to
return the injured worker back to work.
Under the old Act, an employee who was
receiving permanent disability benefits
and who had not been offered an
opportunity to return to work was
entitled to rehabilitation benefits. This
remains the same under the new Act, but
rehabilitation benefits have been
increased from 60 to 72 weeks. However,
if the employee fails to cooperate in the
rehabilitation plan, he will not be able to
receive benefits in excess of his actual
permanent disability (Le. no wage loss
disability).
A problem which existed under the
old act still lives under the new Act. It has
been established by caselaw that a
claimant undergoing rehabilitation is not
entitled to the simultaneous payment of
permanent partial disability payments. J4
Tht:: chief complaint about the
rehabilitation part of the Workers'
Compensation Law is that a claimant will
not choose rehabilitation because he needs
the permanent disability payments to pay
his monthly bills. The problem is
compounded under the new Act because
if the claimant does not choose
rehabilitation, this could be viewed as
lack of cooperation. In addition to losing
the chance of rehabilitation, the claimant
also loses any chance for wage loss
disability benefits. This problem has been
somewhat remedied by the fact that a
number of insurance companies do not
suspend permanent disability payments
during rehabilitation although not
obligated to do so.
PERMANENT TOTAL DISABILITY
Section 22, amending Ark. Code
Ann., introduced numerous changes to
the payment of permanent total disability
payments. First, Section 22 did away with
the Odd-Lot Doctrine. Second, Section 22
states that an impairment rating guide
will be developed which will not consider
pain as a basis for impairment. Finally,
persons over the age of 65 who receive
permanent total disability benefits will be
subject to an off-set of retirement or
pension benefits, whether privately or
publicly funded. The sole exception is
employee contributions to a privately
funded plan.
The retirement/ pension offset raises
several questions. How will the off-set
work where an employee is entitled to a
lump sum retirement benefit? If an
employee contributed to a retirement
plan, how will this contribution be
factored into the offset where the amount
of benefits being paid are a combination
of employer contributions and employee
contributions? Will Social Security
benefits be included in the category of
publicly funded plans?
THOU SHALL OT
TREAD 0 OUR LAW
The 79th General Assembly probably
saved the best provision for last. In
Section 35, it is stated as follows:
The
Seventy-Ninth
General
Assembly realizes that the Arkansas
Workers' Compensation statutes
must be revised and amended from
time to time. Unfortunately many of
the changes made by this act were
necessary because Administrative
Law
Judges,
the
Workers'
Compensation Commission, and the
Arkansas Courts have continually
broadened the scope and eroded the
purpose
of
the
Workers
Compensation statutes of this state. .
In the future if such things as the
statute of lim.itations; the standard of
A Different Viewpoint:
Civil Litigation Reforms of the
New Workers' Compensation Act
By Richard E. Holiman
In addition to sweeping changes to the rights of claimants and
employers before the Workers' Compensation Commission, the new act
attempts to make other drastic changes in the field of civil litigation in
general. The major changes are summarized in this article.
Currently, Arkansas law allows an employee of a subcontractor to sue
a prime contractor if the negligence of the prime contractor caused injury
to the plaintiff. The subcontractor must have workers' compensation
insurance in place at the lime of the injury. See Baldwin v. Manor 224 Ark
348 (1954). The new act specifically places the prime contractor in the shoes
of a subcontractor by applying the exclusive remedy doctrine to the prime
contractor. See Sec. 4 of the new act.
Current Arkansas law allows an employee who is injured on the job to
sue the employer in tort for damages if the employer is acting in another
capacity in relation to the employee. This is more commonly referred to as
the "dual persona doctrine." See Landers v. Energy Sys. Management Co.,305
Ark 267 (991). The new act explicitly destroys this doctrine by not
allowing this exception to the exclusive remedy doctrine. See Sec 4 of the
new act.
Under present Arkansas law, an employee may sue an employer for
wrongful discharge if the employee has been terminated for filing a
workers' compensation claim. See Wal-Mart v. Baysinger, 306 Ark. 239
(1991) and Mapeo Inc. v. Paine, 306 Ark. 198 (1991). The new act specifically
eliminates this cause of action and annuls the holding of the above cases by
specifically citing them. The act attempts to address the problem by
providing a remedy from the Workers' Compensation Commission in the
fonn of fines and criminal sanctions.
The new act limits causes of action against an insurer or a self insured
employer for negligent implementation of a safety program. See Sec. 13(5)
of the Act. Suits of this nature generally have been pursued only in other
states. Current Arkansas law would probably not allow this cause of
action.
Current Arkansas law allows a claimant and a liability carrier to settle
any third party claim "around" a workers' compensation carrier if a third
party claim exists. Commercial Union Insurance Co. v. Suitt Construction Co.,
673 F Supp. 320 and International Paper Co. v. Wilson, 34 Ark. App. 87
(1991). The new act prohibits or restricts this process by requiring three
days written notice to all "interested parties." Each party with an interest
must "cooperate" in the settlement of the claim.
Ln addition to the above restrictions of civil litigation, there may be an
expansion of civil remedies by the limiting of certain claims available
under the act to a claimant. The new act specifically removes stress and
mental claims not involving physical injury and certain "gradual injuries"
from coverage under workers' compensation. Arguably, this would give
the green light to claimants to sue the employer and not be faced with the
"exclusive remedy" deIense.
The foregoing changes to the Workers' Compensation Act will be
litigated in forums other than the Workers' Compensation Commission.
While there may be other changes affecting litigation within the new act,
those mentioned raise many more questions than provide answers.
review
by
the
Workers'
Compensation Commission or
courts; the extent to which any
physical condition, injury or disease
should be excluded from or added to
coverage by the law; or the scope of
the Workers' Compensation statutes
need tu be Liberalized, broadened or
narrowed, it shall be addressed by
the General Assembly and should
not be done by Administrative Law
judges, the Workers' Compensation
Commission or the courts.
It is apparent that one of the drafter's
purposes of HB 1615 was to "get rid of'
all of the "bad" ca...e law generated by the
ALJs, the Commission and the Arkansas
Supreme Court and Court of Appeals in
an attempt to broaden the scope of the
Arkansas Workers' Compensation Law.
After reading HB 1615 one would agree
that the drafters accomplished their
purpose. In addition, the drafters laid
down the gauntlet and dared the ALjs,
the Commission and th~ courts to
liberalize or broaden its provisions.
Although Section 35 has no teeth due
to a doctrine call "Separation of Powers,"
it is clear that the drafters were sending
the message to all that they will not
tolerate anyone trying to accomplish
workers' compenSc1tion "reform" without
their involvement. Ln other words, if the
ALjs, Commission or courts expand the
provisions of the new Act, you can count
on the General Assembly to correct the
expansion at the next legislative session.
WHAT TO LOOK FORWARD
TO IN THE FUTURE
There are a number of programs
which were mandated by the new
Workers' CumpensaLion Law. First, the
Workers'
Compensation
Fraud
Investigation Unit was established by
Section 5, amending Ark. Code Ann. §119-106. The Unit will be headed by a
director, who along with a deputy
director will be responsible solely for
investigating workers' compensation
fraud. The director will report to the
Insurance Commissioner. All fraud
matters will ultimately be referred to the
County Prosecutor, who will have the
authority to hire special assistants to a ist
in the prosecution of these fraud cases.
Section 13, amending Ark. Code Ann.
§11-9-109, established the Workers'
Health and Safety Division. The Division
will cooperilte with the Arkansas
Department of Labor and will serve as a
repository for workers' health and safety
statistical information. The Division will
utilize this information to prioritize safety
needs, coordinate safety services and
promote health and safety through
educational programs.
In addition, the Division will
24
ARKANSAS LAWYER
SUMMER 1993
establish a job Safety Information System
which contains a comprehensive data
base that incorporates information
compiled from employers. The identity of
the employers will be kept confidential.
Further, the Division will establish the
Extra-Hazardous Employer Program
which places employers, whose injury
frequencies are higher than normal, on a
mandatory job safety program.
Section 19, amending Ark. Code Ann.
§11-9-508, mandates the establishment of
a system of managed health care. The
Commission will have to establish
appropriate rules and regulations by july
1, 1994. Under this type of health care
system, the claimant will be requirE'd to
go to a physician who is associated with a
managed care entity certified by the
Commission. The physician can only
make referrals to specialists who are
associated with a certified managed care
entity.
The Commission will also 0) certify
managed care entities; (2) develop
regulations for peer reView, service
utilization, and resolution of medical
disputes; (3) prohibit "balance billing"; (4)
establish fees for medical services (Rule
30); and (5) enable the employer to choose
the initial treating physician with the right
of the claimant to make a one-time
request for a change in physician. 15
Sections 22, 23 and 24, amending Ark.
Code Ann. §§11-9519, -521, -522, state that
the Commission must adopt an
impairment rating guide to be used in the
assessment of anatomical impairment.
The rating guide must be adopted by july
1,1994.
In order to staff the above-mentioned
programs, approximately 54 new state
positions were created. These positiun::.
will be spread throughout the Department
of Insurance, the Workers' Compensation
Commission and the Department of
Labor. In light of the stated purpose of
decreasing the costs of workers'
compensation, these programs may not be
well received because of the costs of
implementing them from scratch. In
addition, some critics have cited to the
fact that a number of the functions of the
new programs could be borrowed from
exi ting programs l6 . Further, the new
programs are not all controlled by the
Workers' Compensation Commission. As
a result, good results will be dependent
upon bureaucratic cooperation, a novel
idea. The more predictable result will be
mass confusion, failure of cooperation,
duplication of effort and increased costs a result not contemplated by the drafters
of HB 1615.
It is the opinion of the author of this
article that HB 1615 was a step in the right
direction. Some would disagree and say
that HB 1615 was "one giant step" by
management on the heads of employees
throughout the state. Regardless of which
opinion is correct, it can generally be
agreed upon that HB 1615 is not a "cureall" for aLi of the workers' compensation
woes. It is anticipated that workers'
compensation could be revisited in the
not too distant future to address the
problems created by the new Act. The
only question is - when? In the meantime,
it will be very interesting to see how the
ALjs, the Commission and the courts will
react to the new Act in light of the strict
construction mandate.
END OTES
I. Ark. Code Ann. §11-9-102(6)
2./d.
3. Ark. Code Ann. §11-9-102(14).
4.See e.g. fOlies v. City of Imboden, 39 Ark.
App. 19 (l992)(law enforcement officer injured
after termination of employment still entitled to
compensation); Welch's LAundry v. Clark, 38
Ark. App. 223 (1992) (employee sustains injury
in fight with co-worker and receives benefits);
Engle 54/< Corp. v. Egaa, 39 Ark. App. 79 (1992)
<death benefits affirmed in claimant's death
caused by accidental overdose of pain
medication after work·related injury).
5. See e.g. Waf-Mart Stores. '"c, v. Baysinger,
306 Ark. 239, 812 S.W.2d 463 (1991); Mapco, lac.
v. Pa;ae, 306 Ark. 198, 812 S.W.2d 483 (1991);
and Thomns v. Va/mac I"dllstries, 306 Ark. 228,
812 S.W.2d 673 (1991).
6."The General Assembly shall have
power to enact laws prescribing the amount of
compensation to be paid by employers for
injuries to or death of employees ... Provided,
that otherwise, no law shall be enacted limiting
the amount to be recovered for injuries
resulting in death or for injuries to persons or
property."
7. 5t.'c Btlldwill Co. v. Mallcr, 224 Ark. 348,
273 S.W.2d 28 (1954).
8. Ark. Code Ann. §11-9-11J6.
9. Ark. Code Ann. § 11-9-107.
10. Ark. Code Ann. § 11-9-406 (up to
$1,000 per day).
II. Ark. Code Ann. § 11-9-529 (up to a
$500 fine).
12. Ark. Code Ann. § 11-9-409 (fine up 10
$1.000 per day).
13. Ark. Code Ann. § 11-9-802 08%
penalty without award; 20% penalty with
award; and 36% penalty for willful and
intentional failure to pay any benefits).
14.See Ryaa v. NAPA, 268 Ark. 1065,598
S.W.2d 443 (1980) (pennanent partial disability
payments are suspended while a claimant is
undergoing rehabilitation).
15.The change of physician can only be to
a managed cart:= physician or 8 bona fide
regular treating physician \-,tho agrees to refer
only to managed care Specialists. Set Ark. Code
Ann. §11-9-508(d).
16. Why come up with an impairment
rating guide when a number of guides are
currently available? The Commission can adopt
the guides which are more closely identified
with the purposes of the new Act.
From the Respondent:
WORKERS' COMPENSATION REFORM
An Attempt to Save the Goose
that Laid the Golden Egg
By Joseph H. Purvis
The 1993 Arkansas General Assembly
passed Act 796, an act to increase
workers' compensation benefits for
employees and to substantially
restructure workers' compensation law to
decrease the cost to employers.
Background
Workers'
compensation
was
compromise Legislation enacted in the
1940's in Arkansas to strike a
compromising balance in dealing with
injuries to employees arising out of and in
the course and scope of their employment.
Under the system as originally
formulated, all parties were to benefit.
The employees were to benefit because
where their injuries arose out of and in the
course and scope of their employment, all
of their medical bills would be paid, they
would received 66 2/3% of their average
weekly wage up to a maximum state cap,
and would likewise receive payment for
any permanent impairment that they
received. All of this without their having
to prove that someone else was at fault or
the proximate cause of their damages.
Employers would benefit in that they
would be spared the expense in terms of
time, money and worry of having to
litigate injury claims through the court
system and their potential exposure was
generally far less than any recovery
would be in tort law in that there would
be no monies for pain and suffering, loss
of consortium, mental anguish and the
like.
The Crisis
Over the past ten years or so, a crisis
has developed in the area of workers'
compensation, not only in Arkansas, but
throughout the United States. The crisis
has resulted from a number of factors.
First, a majority of workers'
compensation acts call for liberal
construction of the act in favor of the
employee and appellate courts, in
Arkansas and throughout the nation, have
seized upon this and mightily expanded
the definition of a "compensable claim路'
during this period.
Secondly, medical costs have
skyrocketed. In addition to other fadors,
it is a sad fact of life that a workers'
compensation case is the only type of case
a physician will handle which will
guarantee that he will be paid 100% of his
fee. While most states have provisions
holding the respondent liable for only a
"reasonable medical charge", the fact is
that most commissions and courts have
I been loath to call doctor's hands on any
fees. For a number of reasons, the medical
costs on each claim have soared.
Thirdly, workers' compensation
fraud has soared throughout the country
and is well documented by a number of
expose shows such as 20-20 and 60
Minutes, Individuals have discovered that
a workers' compensation case is the
easiest of all to prove given the fact that
the Act should be liberally construed in
favor of the claimant. Unfortunately,
many administrative law judges
throughout the country have found it
easier to take the path of least resistance
and award full benefits even where there
was no proof whatsoever other than the
c1aimanrs own selI-serving testimony that
he suffered an injury during the course
and scope of his employment.
The Initial Solution
By 1986, the playing field in the area
of workers' compensation had become so
tilted in favor of employees, and claims
and insurance premiums had grown so
high, that employers and insurers were
forced to take a drastic step. For the first
time in anyone's memory, these groups
banded together and applied pressure to
the legislature and Governor to create
some fundamental changes in the
workers' compensation system as we
know it. What ultimately resulted was a
great compromise struck among
organized labor, the Arkansas Trial
Lawyers Association and respondents'
groups which resulted in Act 10 of 1986.
It was felt and agreed that this Act
would do a great deal to lower costs and
premiums. This Act altered somewhat the
liberal construction of the Act and
required the party having a burden of
proof to meet that burden by a
preponderance of the evidence, and
provided that in making said
determination, the judge would weigh the
evidence impartially without giving
benefit to either party.
While Act 10 substantially raised
workers' compensation benefits, it also
provided that any determination of the
existence or extent of any physical
impairment should be supported by
objective and measurable physical or
mental findings. After the special session
of 1986, employers felt most of the
problems had been solved and that the
playing field would be once again leveled.
This was not to be, however, as the
Arkansas appellate courts continued to
broaden the scope and coverage of
workers' compensation and, in some
instances, seemed to opine that the
language of the statute did not mean
what it seemed to clearly state.
As a result of all this, the crisis in
workers' compensation continued to
mushroom and it became readily
apparent that many businesses that were
supplying jobs to Arkansas workers were
in danger of either going under,
dropping workers' compensation
insurance or moving to other states.
Arkansas employers were being met
with a double whammy: (I) the number
of insurance companies writing
insurance in Arkansas shrank to an
alarmingly smali number; and (2) at the
same time, workers' compensation
premiums increased so rapidly that
companies were either forced to go out of
business or push perilously close to that
position.
The Ad Hoc Committee and Douglass
Measure
In 1972 an ad hoc committee was
appointed to review Douglass's bill. This
committee was made up of businesses
and employers on the one hand and
organized labor and the Trial Lawyers
Association on the other. The committee
met repeatedly over a period of several
months, making precious little headway
having
quickly
divided
into
employee/employer camps. Their
meetings were marked with a great deal
of acrimony and hostility. They were
only able to agree on a few, rather
innocuous items centered around
increasing some safety provisions of the
current act.
At the direction of The House
Insurance Committee, Insurance
Commissioner Lee Douglass drafted a
bill based on the workers' compensation
act in Oregon where they had been able
to reduce workers' compensation
premiums by 35% over a four year
period, while at the same time
dramatically increasing the number of
underwriters
issuing
workers'
compensation in that state. Douglass' bill
revised
Arkansas'
workers'
compensation act by putting greater
emphasis on safety while at the same
time dramatically restricting what would
be a compensable injury under the law.
That bill was called a "mean spirited"
anti-worker bill by labor, which urged its
defeat.
House Bill 1615
In the meantime, the Arkansas State
Chamber of Commerce was hearing its
members speak to it loud and clear. The
26
ARKANSAS LAWYER
SUMMER 1993
members were being strangled by
workers' compensation costs and knew
that something must be done in 1993.
This same group thought that the
workers' compensation problem had
been solved by Act 10 of 1986, only to
have these hopes dashed when the Act
was eroded by loose, broad construction
of its terms.
The members of the State Chamber
of Commerce looked at the ad hoc
committee and found only some rather
innocuous items that would really not
result in the sort of immediate and
needed savings they felt were needed in
order to preserve business in Arkansas.
The group also looked long and hard
at Commissioner Douglass's bill. It found
that while this bill provided an excellent
base for change, given their experience
with Act 10 of 1986 and what they felt
was
an
ever-broadening
and
liberalization of the Act by the courts,
something more dramatic was needed.
With that in mind, the State Chamber of
Commerce drafted House Bill 1615. This
bill, which used Commissioner Douglass'
bill as a base, was modified extensively
after it cleared the House of
Representatives through intense
negotiations with the Senate Judiciary
Committee, ATLA and the Governor's
office. The modified version of this bill
then rapidly cleared the House of
Representatives and was signed by
Governor Tucker as Act 796 of 1993.
I know of no Act in recent memory
which has been as vilified as this one. It
seemingly has become a popular thing to
do to criticize this Act and organized
labor now refers to it as "the coldest,
most mean-spirited piece uf legislation in
their memory." The deriders of the bill
fail to note that there are a number of
benefits in this Act for employees.
The Act specifically penalizes those
who would willfully and knowingly
make materially false statements or
representations for the purpose of not
only obtaining benefits but also for the
purpose of avoiding, defeating or
decreasing any benefit.
This Act specifically prohibits
employers' conduct willfully discriminating in regard to the hiring, tenure of
work or of any term or condition of work
of an individual on account of that
person's filing a claim for benefits. The
Act penalizes employers who fail to
secure workers' compensation by
providing a fine of up to $1000 per day of
violation up to a total of a $10 /000 fine.
The critics of this Act likewise fail to
mention that Act 796 beefs up the safety
requirement to prevent injuries from ever
occurring and provides for specifically
identifying those employers who are
extra hazardous and penalizing them.
Thus, the Act will force a much safer
workplace for employees.
The critics likewise failed to note
that benefits stand to be dramatically
increased as well. Under the provisions
of the Act, the maximum weekly benefit
payable for a compensable injury on or
after January 1, 1997 will be 85% of the
state's average weekly wage if the
Insurance Commissioner certifies to the
Workers' Compensation Commission
during December 1996 that workers'
compensation insurance rates overall
have been decreased by at least ten
percent over what they were as of July
1,1993.
The detractors likewise neglect to
mention that where an employer refuses
without reasonable cause to return an
injured employee to work where suitable
employment is available within the
employee's physical and mental
limitations, then the employer shall be
liable to the employee for Ule difference
between the workers' compensation
benefits received and the employee'S
average weekly wage lost during the
period of such refusal for a period not
exceeding one year. The detractors
likewise failed to mention that the period
for a rehabilitation program has been
increased from 60 to 72 weeks.
It is certainly true that Act 796 of
1993 seeks to tighten and reduce the cost
of workers' compensation by reducing
compensable injuries. It also seeks to
reduce compensable injuries by increased
safety programs and putting pressure on
employers, and by seeking to reduce
medical costs with programs designed to
dovetail with the current Rule 30 of the
Rules of the Workers' Compensation
Commission.
The employers of the State of
Arkansas who provide jobs for the
workers of Arkansas were in a most
serious crisis in workers' compensation.
Business is "the goose that laid the
golden egg" by providing jobs for our
people. This "goose" was in danger of
expiring. Act 796 of 1993 was an act to
increase workers' compensation benefits
for employees and to substantially
restructure workers' compensation law
to decrease costs to employers. While the
Arkansas State Chamber of Commerce
and other employer groups have been
vilified for their active support of this
bill, the fact remains that this bill passed
both the House of Representatives and
the Senate by more than a two-thirds
vote. Obviously, the members of the
legislature heard the cries for help from
the "goose." I think that Act 796 wili save
our goose rather than cook it. Let us all
hope so.
From the Claimant:
WORKERS'COMPENSATION REFORM
Cutting Costs by Eliminating Employees
from Coverage
By Zan Davis
Workers' compensation rdorm was
foremCht on the agenda of the Arkansas
General Assembly during th~ 1993 se5sion
and when that happens there's trouble
ahead (or someone. And we got it - Act
796 of 1993. What follows is a brief
comment on our workers' compensation
rdonn from a \Tery bia~ ob!otCrvcr.
The Early Compromise
With the adoption of the original
workers' compen~tion law in the 1940'si
a great compromise was struck.
Employ",-" gave away the nght to sue an
employer in lort, the right to trial by jury,
and the right to rt.'Cover full damages for
their injuries. In exchange, there was
established a no-fault system of recovery
for Iimih.'C1 compensation which was to be
obtainable in a speedy and informal
manner with rights to benefits being
conslnled liberally in favor of the injurc>d
worker. While the employer's immunity
from suit in tort and the exclusive remt.'CIy
shield has been preserved in the slatutes
and staunchly protectc>d by the courts, the
ArkalLSds legIslature has gradually erod<>d
the righls of employees under Ihe
Workers' Compensation Law. As a result,
employers have been able to take back, to
a great extent, their end of the bargain.
Act 796 of 1993 is the most recenl and
devastating blow.
The Douglass Initiative
As we entered the 90's, premiums
paid by empluyers for workers'
compensation insurance had risen to
strangling levels, primarily due to the
sky-rocketing cost of medicdl treatment.
The Arkansas Insurance Department
granted a 18.5% rate increase in 1992. The
heat was on. The Joint Interim Committee
on Insurance and Commerce direded Lee
Douglas.., Insurance Commissioner. to do
something about insurance premiums
through legislatl\·e reform. Dougla .. ~
looked to Oregon, a state where major
workers' compensation reform had
resulted in double digit premium
reductions for workers' compensation
insurance. According to Oregon officials.
the driving force bt.·hind reductions had
been a tough and extensive safety
program which drasticall} reduced the
number and seriousness of work-related
injuries occurring in that statl'. Douglass
drafted a proposal borrowing heavily
from the Oregon reform act and produced
what eventually came to be known a" the
"Douglass Initiative". An ad-hoc
committee of workers' compensation
experts from all walks of life was created
by the Joint Committee on Insurance and
Commerce to study the Dougl,lss
Initiati\"e. For months, the ad-hue
committee reviewed, modified, and
added to the Douglass Initiative.
Eventually, a 37 page bill emerged
repre~cnting the unanimous recommendation" of the ad-hoc committee. At the
last minute, the Chamber of Commerce
decided that the recommendations of the
ad-hoc committee were not radical
enough and drafted an entirely different
bill which became I louse Bill 1615. Afler
heak>d debate, 1615 pa,sed the House of
Representatives and the Senate with
minor amendments and became law on
March 31, 1993, as Act 796 of 1993.
Ad 796 of 1993
Unlike the Oregon plan, which was
predicatl>d on prevention of injuries, Act
796 of 1993 will attempt to reduce
workers' compen~ation costs by simply
eliminating large groups of injured
workers from coverage. Specifically,
many "gradual" injuries, psychological
injuries, injuries resulting from
aggravation of preexisting conditions, and
those suffering from work related
respiratory or heart problems will be
significantly restricted or entirel~'
eliminated from coverage under the
Worker!'t' Compensation Law. Even
though these people will be dis.lbled and
In need of medical treatment, they will not
be compensated even if there is no
question that their problems are work
rt~latL~. Obviou!:>ly, costs can be reduced
bv eliminating large groups of workers
from con~rage. But what will happen to
these people? \Vhl're will thl"· end up"
Thos~ ,",,·ho have medical insurance md}
be able to obtain partial payment of their
medical bills but premiums for medical
insurance are already out of control. Some
will end up on Medicaid but this system is
broke. \-1an}' will simply go untreated,
unable to get \".ell and return to work.
Arguably. this is not a very enlightent-~
approach to soh·jng the workers'
compt.'nsation problt'm, but the Arkansas
Legislature has nC\"l'f been f~lmous for
cerebral solutions.
CLE and Sacrifice
By Deb Garrison
It's 7:30 a.m. and I've been up for the
past two hours preparing for this
particular morning. I'm in the Best
Western parking lot manhandling the
third, yes tllird, fifty pound box of books
out of the back end of my Izuzu Trooper.
My only thought: "Please, God, let the
coffee be read y."
I get to the registration table where I
am greeted by a man who looks rabid.
"Surely," I think, as my mind starts
racing, this man is in the wrong place.
Registration doesn't ~tart until 8:30 a.m.
I got up at an ungodly hour this morning
just so 1 could have registration set up
before ...
"Is this that eLf seminar?" he
bellows, his voice filled with loathing.
"Family Law?" I reply with a
tentative smile, hoping against hope that
thin maniacal man is in the wrong place.
"That's it," he barks, "I dun'l know
what this CLE is good for. Can lead a
horse to water but you can't make him
drink."
To make a long story short, I spent
much of the next six hours listening to
this man's tirade about CLE, the Bar
Association, the Supreme Court and
every other goshawful institution known
to man. He never let up. Even as other
lawyers made their way through the
registration line.
Because I was polite and allowed
him to vent, we ended up "good friends."
As we left the Best Western that
afternoon, he let me know that if it ever
became necessary for him to sue the Bar
Association, he would ~xc1ude me from
the lawsuit. I thanked him and went
home where 1 promptly downed three
vodka tonics to the sounds of Pink
Floyd's "Dark Side of the Moon." It was
not a good day.
I though that most of the resistance
to mandatory CLE had died down in the
last few years. Boy, was I wrong.
Becoming an employee of the Arkansas
Bar Association (as I did last September
when AICLE was merged into the
Association) has forced me to take a
second look at CLE.
"Fixing CLE n
The movers and shakers within the
Association tell me that all is "ot well
with eLE in Arkansas. They report that
28
ARKANSAS LAWYER
SUMMER 1993
certain factions want to "increase the
number of carry-over hours" because
they have to "travel out-of-state to get
quality CLE:' Others say that they hear
continued complaints that "CLE is
inconvenient" or "it costs too much." Still
others who would like to shape the
Association's approach to CLE, say that,
in their opinion, there is "too much CLE."
Both of the candidates for PresidentElect of the Association have been quoted
in Ti,e Daily Record as saying that, if
elected, they would "stress" continuing
legal education. I'm not sure what that
means, but I get the feeling that with all
of the bad rap, they've probably got some
pretty definite ideas about how to "fix"
CLE.
The CLE staff has tried to "fix" CLE.
We've cut back on wasteful spending,
thus insuring low registration fees.
We've tried to make seminars available
throughout the state, thus insuring
convenience. We've tried to work with
our speakers and program planners to
improve quality through such measures
as early planning and guidelines for
presentations and course materials.
We've tried to encourage our speakers to
use effective adult learning methodology
- or at least use auuio-visual aids, if
appropriate. We've even hosted a faculty
development workshop.
Stilt according to most accounts by
those in the know, many of you are
dissatisfied with CLE.
Don't misunderstand me. There is
room for improvement. Staff is probably
more in touch with the shortcomings of
CLE than you'll ever know. (We actually
read those evaluation forms you turn in.)
We are always trying to improve what we
do - within a limited budget.
An You Willing to Sacrifice Your Time
to Make CLE Beller?
I think you'll find the CLE staff is
ready and willing to do what it takes to
make our s~minars better. My question
to the nay-sayers is this: Are yo" willing
to do what it takes to make CLE better?
To the nay路sayers who have
abandoned the cause by only attending
out-of-state programs - when is the last
time you offered to help us make our CLE
seminars better? Are you willing to
volunteer your time to plan a program or
speak? What have you learned at those
programs that would work here? Tell us.
To the nay路sayers who have
volunteered in the past - are you
willing to take even more time away from
your practice to attend a workshop to
help you improve your presentation
skills? Are you willing to study effective
adult learning techniques and put them
into practice in your next CLE
presentation? Are you willing to learn
how to properly use audio-visual aids to
help our attendees get more out of CLE
seminars?
To the nay-sayers who have
planned programs in the past - are you
willing to work with us to develop more
intensive, problem-solving workshops workshops which require a BIG time
commitment?
(Try at least two,
preferably three, planning meetings with
faculty and a problem-drafting session at
least 9 months in advance)
To the nay路sayers who hold or
aspire to hold policy-making positions
within the Association - are you willing
to commit the resources - budgetary and
otherwise - to staff as we implement all
of these innovative methods in CLE
programming? Are you willing to
sacrifice atl~ndance numbers (and
registration fees) for the smaller
workshop approach? Are you willing to
take the time and spend the money to
find out the needs of the entire
membership, not just those who are most
active? Are you willing to consider that,
in the face of increased competition for
the CLE dollar, we should offer more
high-quality, convenient and cost
effective seminars?
And finally, to nay路sayers in general
- when you attend one of our programs,
you're a recipient of CLE credit courtesy
of your fellow lawyers - busy lawyers
who have volutlteered to plan programs,
write outlines, and prepare oral
presentations. Every time you badmouth CLE, you bad-mouth your peers.
Isn't that lawyer- bashing at its worst?
If your answer to at least some of
these questions is "yes/' caU me at 3753957. If you're ready to make the
sacrifice, I'm ready to work with you to
improve CLE.
&,~
.,
,
A Personal Loan with terms
you can live with.
~---.-----=--
"We want to help you
get behind the wheel of
a new car. Call Citizens
First, first!"
Mike Jones
Vice President, Citizens First
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West Little Rock, 11000 Financial Centre Parkway, 227-9631
ACall to
A. R. M. S.
By Lamar Pettus
I am very proud to have the
opportunity to serve as President of the
Arkansas Bar Association. To introduce
myself to you, I want to ramble a little
and discuss three things which are
important to me: the need for a
legislative package; the dues increase;
and a call to A.R.M.S.
First, I believe the most successful
and productive associations are driven
by the ideas and thoughts of its
membership. I need your advice and
your help. I do not have a preconceived
agenda except to challenge you to be
active and make a difference through the
Association. You can-I know, because T
did as a young lawyer. By "complaining
to a bar president," a law was changed.
That one incident is probably why I am
here today.
The 1993-94 Bar Year is considered a
non-legislative year. Because of this,
there is a danger that you and I will lapse
into a "there is nothing to do" attitude. If
this becomes your attitude, you need a
"wake-up call." The 1993-94 memberslup
must write and assemble our next
legislative package. Each committee,
each member, should be working
diligently to review, revise, and propose
legislation which will alleviate problems
directly affecting our lives as lawyer.;. If
our legislative package is not complete
by mid-June, 1994, there will be no
legislative package. Thus, I challenge the
committees and the membership to begin
the new year with new hopes and new
goals.
Second, for the first time in 14 years,
there will be an increase in mcmbcrship
dues. Is membership worth it? If your
answer is" o!" or'1 doubt it," then may
I be so bold as to suggest that if
membership is not worth it, it is your
fault. To derive the most from the
Association, one has to participate and
be an active part of the Association:
Are you reading the Arkansas
30
ARKANSAS LAWYER
SUMMER 1993
Lawyer/responding to the "fax poll"?
Do you attend Bar-sponsored CLE
programs?
Have you updated your Arkansas
Form Books/Computer Discs?
Have you participated in a Pro BoliO
or Public Service Program?
Have you joined the Lawyer
Referral System?
Have you read the Arkansas Law
Review or the Law Journal?
Are you familiar with BARNET?
Have you thanked our lobbyist and
Past President John Gill because Lawyer
Services/Fees are not being taxed?
I submit the benefits of membership
far outweigh the cost. One client
obtained through the Lawyer Referral
System can produce profits far in excess
of your dues. The savings handed to
each lawyer when the Association rallied
to help defeat the proposed tax on
la\vyer services will more than offset the
cost of your 1993-94 dues plus your dues
for years to come. Why not become a
Sustaining Member or commit to spend a
few days in Little Rock working with our
lobbyist during the next legislative
session; time is money and the dues are
worth it.
Finally, I want to issue to each
lawyer a call to A.RM.S. Just as you are
the key to making membership a
rewarding business venture, it is you and
I who must formulate an Aggressive
Response to a Misinformed Society.
We have allowed ourselves to
become a maligned profession. For years,
our profession has been under attack by
politicians, business leaders, other
professionals, and yes, even our own. A
member recently wrote and suggested
maybe we, as lawyers, need a "wake-up
call" in general-not just to the crisis our
justice system faces-I agree!
Lawyers
must Aggressively
Respond to a Misinformed Society by
publicly acknowledging the roles the
legal profession plays and the sacrifices
its members make in protecting
individual freedoms which help
maintain a free society. Each lawyer
must become involved-be active, be
positive, and take the challenge. To
encourage active lawyer involvement,
lawyers must publicly acknowledge our
members who serve on city boards, city
councils, county quorum courts, school
boards, commissions, and in the
legislature. Such service is no less pro
bono than the providing of free legal
advice and representation to the needy
client for which service our members are
awarded by public acknowledgment amI
lapel pins.
But we must do more. Lawyers
must publicly acknowledge and support
an individual's rights to legally challenge
laws, regulations, and projects which,
although locally popular, might be
constitutionally suspect. We must also
provide public and private moral
support for the lawyer who steps
forward to represent the individuals who
initiate such unpopular challenges.
We are members of a profession
once held in high esteem for its fairness,
courage. hard work, intelligence.
aggressiveness, honesty, ethics, and
independence.
As members of this Association, we
must diligently and quickly begin the
work of the 1993-94 Bar year. We must
prepare our legislative package, pay our
dues, become active, and become
involved.
We also must begin to build the base
from which we can wage a war against
those in society who threaten the very
foundation of individual freedom by an
unrelenting attack on our profession. It is
what I view as a call to A.R.M.S.-an
Aggressive Response to a Misinformed
Society. Become a part of the campaign;
become active in your Association, your
community, and your state.
GETTING
DOWN
T0
BUSINESS
WIT H
L
Shrewd (shrOOd) adj.: 1. having
READY FOR A SURPRISE?
Pellus left Forrest City thed",y .fter
keen insight: ASTUTE. 2. Artful and 1 - - - - - - - - - - - - - - - - - - - 1 IUs high school graduation to attend
cunning. 3. Sharp.
LAMAR PETTUS IS NOT
summer school at the University of
Affable (af e' be'l) adj.:1. Easy to
Arkansas at Fayetteville. I asked him
converse with: AMIABLE. 2. Marked
A GOOD OLE BOY.
why he wentto summer school at that
by gentleness or graciousness.
point. '1 was in a hurry. I was going
These are two words that aren't
HE'S A BUSINESSMAN AND to make enough money torel:ire at age
normally used together to describe
40 so I figured I better get started."
someone, but with Lamar Pettus,
READY TO START
"But you're 48 and you're still
they seem to fit perfectly. This 48
working, " I remark.
year-<lld President of the Arkansas
TAKING CARE 0 FIT.
'1 decided when I was around thirtyBar Association really is affable but
five that maybe I was going too fast,"
at the same time quite shrewd.
he responds. " llooked around, and I
When you first meet Pettus the
BY PAIGE MARKMAN
was working all the time. I mean, you
affable is obvious. He's handsome,
work all day, every night, all weekend
friendly, outgoing and talkative. The
and what do you get from it? Money.
shrewd part sneaks up on you. Just when
City that Pettus got IUs first taste of being
Thars really all- money. And you
you think you've got him figured to be a
"President." He was plagued with a
know, how important is it in life to have a
good ole boy, ready to go golfing or
speech impediment as a child and was
whole lot of money? I decided it wasn't
fishing at the drop of a Razorback
taken to special classes several times a
important enough to keep me from being
week to overcome it. If you listen
happy, from spending time with my
baseball cap, he throws in a really
carefully, Pettus still employs the
family."
enlightened, man-<lf-the-nineties
comment referring to the operations of IUs techniques they taught him when
It was at the University that Pettus
suecessfullaw practice in orthwest
speaking. He pauses between sentences,
met Donna Evans from Little Rock.
thinks very carefully of what he wants to
'1 met her when it counted in July of
Arkansas. Intrigued, you continue the
conversation and find, not really
say, and then deliberately proceeds
1968," said Pettus.
surprisingly, that tlUs is not only a
slowly to get IUs point across. The speech
" No it wasn't - it was September of
shrewd lawyer but a savvy businessman
problem taught him a lesson many of us
1967, LamarI," exlaims Donna.
with the instincts of a shark. So, shrewd
could still learn - to think before we
"Oh, that's right. I had met her
and affable make a very interesting
speak - but also left him shy and
before, but I don't really remember it. She
somewhat withdrawn from his
does. But we didn't start dating until
combination all of the sudden. And just
to top it off, throw in a lawyer-wife _
classmates. Pettus was not a "joiner." He
September of '67. She was going wilh
who's just as intelligent as he is but with
usually had a small group of friends. He
someone else, and I asked heroul. I
an added ingredient - you will not find a didn't join in the ever popular Southern
didn't know she was going out with this
woman more in love with her husband
high school fraternity system. It was this
guy, and when I brought her back to her
and more loyal and devoted to helping
syslem thaI led him 10 IUs first attempt at
dorm he was there waiting. He told me he
her husband get to where he wants to be.
holding office when IUs group of friends
was dating Donna and asked if I was
Pettus says he was a "poor farm
thought it would be funny to nominate
ready to fight him over it. I said "No, I'm
boy," raised in Forrest City, Arkansas
Pettus for Student Body President so that
not going to fight you over a girL" When
where IUs father was a farmer and IUs
the usual Fraternity guys would have
asked why he didn't fight, Pettus's first
mother remained busy taking care of
some competition. Pettus agreed and set
response was: "There were 499 other
Lamar, his older sister Patricia, and a
out to run a real campaign. He did .. and women on ca.mpus. I had only had one
younger brother, Glenn. It was in Forrest
he won.
date with Donna." Thars your first clue
J
32
ARKANSAS LAWYER
SUMMER 1993
about Lamar's shrewdness. Donna was
good combination with his engineering
at night. Again, he went to summer
impressed and promptly dropped the
other guy to began dating Lamar.
During his time at the University,
Pettus also became politically active,
degree, get him a little closer to that
retirement goal, and further his political
efforts.
school each year and finished in 2 1(2
years. After graduating with honors,
Pettus went to work for Pearson &
Woodruff in Fayetteville. He worked for
the finn for nine months and quit to go
out on his own. There's your second due
about shrewdness. Determined to work
for himself and make lots of money, he
opened his own firm and borrowed
money to buy one of the local gas stations.
He put Donna, now with two children, to
work managing the station during the
day, and at five o'clock, he would take of(
his suit and put on his overalls and run
serving on the Student Government and
making an unsuccessful bid for
President of the
Student
Bodyhe lost to
a young
man from
Hope- it
was Mack
the station himself at night. The
McClarty.
After
graduating from
the results sent to the University of
Arkansas, the University of Texas and
Southern Methodist University. He got
an acceptance letter from Texas and no
investment did not tum out to be the
money maker Pettus thought it would be,
so he closed it after two years and put his
money into real estate, a business in
which he has continued to invcst and find
success.
Donna came into the office as his
secretary after the saJe of the gas station.
It is obvious when you meet her, though,
that she was probably a valued advisor
and partner even at that point. It was just
before the birth of her third child, Chase,
that Donna decided she wanted to go to
law school. After Chase's birth, she began
response from SMU. He decided not to
do anything about it at that point and had
law school in 1980.
"I had always been interested in the
one night soon after reaching California
and said "Why don't you come out and
visit and maybe we'll get married." They
returned to Canton to resume his job.
Upon returning, he found a letter that had
was working all the time, and I thought if
literally "followed him around the world"
I were a lawyer, not only could I see him
did marry on August 17th of that year.
Donna left college at that point and joined
from the University of Arkansas.
The letter said "You've been
Lamar in California for a short time
accepted to law school at the U
of A School of Law; get your
check for $50 and your photo
sent in by the fourth of july
the five year
Engineering
Program in 4&1 /2
years, Pettus went to
work for
International
Harvester in Canton,
Hlinois. He was there
only two months when
he was calJed to active
He took the test and had
duty in the Navy.
He reported to the U.S.s. Oklahoma
City in San Diego, California, in February,
1968. He called Donna from a pay phone
before they shipped out to Yokusuka,
japan. They spent a year in japan and
lived in several other ports over the next
three years, including aples, Italy, and
ewport, Rhode Island. Donna finished
her degree by returning to Fayetteville for
a couple of semesters and taking
correspondence courses.
After his stint in the avy, Pettus
returned to Canton to work for
International Harvester. A funny thing
happened, however. While he had been
out at sea, his commanding officer had
asked him to take a advanced degree
exam because he got $15 for every
serviceman he could get to take the test.
Pettus thought about it and agreed to take
the LSAT. He had thought about going to
law school before, lhinking it would be a
34
ARKANSAS LAWYER
SUMMER 1993
law, but, more importantly to me, Lamar
more often, I could hel P
..--____
Asked why he
wouldn'tfight
him and
understand what
his problems and
goals were -
it
would just be one
weekend." Being that it was
more thing we
over Donna
had in common,"
jumped in his car and drove
after theirfirst says Donna. "1 just
down to Fayetteville, stopping
thought it was the
date, Pettus sallS best of both worlds
at the local K-Mart to get his
"T/J"
picture taken in a booth, and
to be able to work
nere were 499 with Lamar and be
slid his check and photo
under the Dean's door just in
other Women on with him at home. I
time.
can't imagine only
To get through law
campus, I had seeing him for two
school and help support
hours a night at home
only had one date when we're both
Donna and their new baby,
Pettus got money from the
with Donna. " tired." "She just
V. A. Bill and worked two
the 4th of july weekend, Pettus
jobs, roofing houses during
the day after class and being a janitor
wanted to make sure J
never bought another
I comments she didn't like.
gas station/' says Lamar.
I've been
known to throw a file or two,"
says Lamar.
After graduating from law
school Donna
'Well yes, but not very
went out on her
own to see what it
was like to be a
small town
practitioner as
Lamar had done.
When Pettus,
Johnson & Gibson
broke up, Donna
joined Lamar in
forming the Pettus
Law Firm. The firm
now employs two
other lawyers, Lisa
Thome--Corke and
Don Wilson. When
asked who is the
senior partner, there is
no hesitation, "I will
always consider it
"Lamar is the
often anymore. f think we've
trial lawyer,
gotten past a lot of that as
outgoing,
one-on-one,
person-to-person
lawyer. I p~efer
research, wrtttng,
developing
a case, "says
Donna.
Lamar's firm. He established it, and, if it
weren't for him it wouldn't be the firm
that it is."
Making the transition from mother to
mother Ilawyer has not always been easy
for Donna. She has been the primary
we've matured, both
professionally and in our
marriage," says Donna.
The two work well
together when it comes to
most cases the firm handles.
Lamar is known for taking
on controversial cases, but
only the ones in which he
believes.
"Lamar is the trial
lawyer, outgoing, one-onone, person to person
lawyer. I prefer research
and writing, developing a
case," says Donna.
Often Donna will do
the research for Lamar, and he will take it
into court. And he wins - a lot. One
gets the feeling listening to his "war
stories" that once you hire Lamar Pettus,
once he believes in your case, he's like a
and be part of the b<xIy helping Lamar
make the changes he wants to happen,"
says Donna.
Changes Lamar wants. This usually
begins the section of the article where the
new President presents his lofty goals of
totally revising the judicial system or the
legislature or tackling the image of
lawyers on a national basis. A very
shrewd Lamar Pettus doesn't have big,
lofty goals. He has very detailed steps
toward the future, not just for his year but
for the Association and Arkansas lawyers
for years to come.
Pettus is different from past
Presidents I've interviewed. They have
all been very intelligent, well-spoken
men, but they are and have always been
lawyers. Pettus is not only a lawyer, but
as stated earlier, a very savvy
businessman. His forays into the business
world have included not only the gas
station, but building up and managing
extensive real estate investments. He has
been a property manager, a buyer and
seller of properties, a maintenance man
and a landlord. Because of this
experience, he has an insight into the
"business" aspect of the Bar Association
working at least an 8 hour day.
dog with a bone - he's not going to stop
fighting until its done. Donna has been
equally successful, putting together some
"Lamar and I share some of the
responsibilities, but the children will
carefully researched and
documented cases. And, though her main
groundwork laid for furthering the
predecessors, but now it's time to take a
caretaker of their three children while
always be my first priority. It's easier
job has been raising her
since Lamar made the downstairs of our
children and
office building an apartment for the kids.
I would pick them up from school and
bring them to the office, and they would
supporting Lamar's
efforts, she has begun
do their homework or watch TV
well. As ofthis
basketball outside where Lamar put up a
writing, Donna
Pettus is one of
the new members
during the interview to remind his
mother to tell me he was the good looking
one with all the babes - obviously takes
after the old man.
The Pettuses believe they
"Through
seeing
Lamar's
complement each other to make the firm
work. 'There are always problems with
spouses working together. I'm sure
employees in our office have heard
Donna slam doors when J've made
look at the Association itself the business.
of the Arkansas
Bar Association
House of
Delegates from
her district.
senior at Fayetteville High School, and
Chase, the fourteen year old who called
profession by John Gill and his
to come into her own
in the profession, as
downstairs, and sometimes play
net for them," says Donna. "It's better
now that the kids are older."
The children are Lamar Jr., now a
senior at the Air Force Academy; Carrie, a
that others haven't had - and he's going
to use it. Pettus says we've had good
work with
the Association, I've
...
-::!:::::~"",,::::::::::: ~r....r;;;;~
come to see the benefits of working
with the Bar, seeing how you can make a
difference. I wanted to be a part of that
'Tm going to run the Association this
year like I would any other business. As
CEO of the Association for the year, I am
going to see that we take a look at the
way the business end is run - staff
responsibilities, program administration,
how each member's money is being spent.
I'm going to take the things I find to the
members and make sure this is how they
want their dollars spent," says Pettus.
This will include the assessment by
an independent management consulting
team of the Association staff and
executive staff and n clearing through
Pettus of any major expenditures. The
Executive Council will evaluate personnel
policies and procedures and will report to
the members on all of these findings and
let them vote on how they want their
Association to operate.
Basically, Pettus is going to ask
questions, not only to the members, but to
the established Bar and the Association
staff. He is a seeker of knowledge - your
last due to his shrewdness - and he uses
that will affect our
profession, and affect it
directly and
immediately. But I
also feel the
Association should be
member-driven, not
leader driven, so I
will go with what
the members
want," says Pettus.
Pettus looks
at the Association
strictly as a
business and
will view it as
manyCEOs
are looking at
their
businesses
these days. He
believes that if we want to go
fonvard, we need to streamline, arrive at
a position in which we are lean, mean and
going to make them
going to take an
individual effort from each member to
modernize the Association and also to
change the image of lawyers, which will
make the profession better for all of us,"
says P~ttus.
So what do these changes mean to
the members of the Association? You
may not see the dramatic changes, you
may not be on the direct receiving end of
the questions or suggestions. I have a
feeling, though, that all of you will see the
changes eventually. Lamar Pettus is
going to make the changes that will allow
the lawyers of Arkansas to have a solvent,
more in depth? Are we
successful BUSINESS to support them for
trying to compete with
a long time to come. And perhaps, I
think, these are the rno t important
efficient- ready to meet the challenges
the knowledge he attains to improve or
before us. We need to set some dear
better the people and things he is
goals and work diligently toward those
goals. Part of that process is asking
associated with. He wants to know if our
programs are, first of all, what the
members want and secondly, cost
effective.
'1f you're going to be a leader, if you
are going to be involved, you have to ask,
'Why are we doing
things this
way? Is there
a bette.r way?'
You've got to
answer these
questions and
be committed to
make changes if
that is what is
necessary. It can
only help us as
la wyers. The
reason [ am in the
position I am in
now is that the
Association has
done a lot for me
as a lawyer. I think
it is a good
organization and is
a means by which
lawyers can make a
difference in ways
36
ARKANSAS LAWYER
questions about everything we are domg
now.
"We have a major question in CLE. If
we are going to be in the CLE business,
where are our CLE
Programs going? Are
"we need to set
some clear goals
and work
diligently toward
those goals.
Part ofthat
.
process IS.
asking questtans
about everything
weare
doing now. "
we going to continue to
offer good quality
programs? Are we
national providers?
We may not like all
the answers, we may
not like the
suggestions we get,
but it is very healthy
for the Association
to look inside itself,
and 1 think it's time
for us to do it. We
need to make
decisions.
I also
want to get the
members involved
in changing things
for ourselves. It is
SUMMER 1993
changes of all.
"He's looking out for the well being
and reputation of lawyers as a profession.
His concern and dedication for this
profession is his passion. He'll do a great
job" says Donna as she again looks
toward her husband, not only with a
maturing love, but with great respect.
Editor's Note: Thanks to DonnQ and LAmar
Peltus for braving the hfJ1t during the photo
shoot and also for their honesty and franlrness
while being interviewed.
8th Cir
Opinion S
•
written
Dean Howard E·se.. ""-, ,",
of the UALR Sc
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LAW
PRACTICE
MANAGEMENT
The Benefits of
Automation
By Jerry Schwartz
Automation is very important to
the financial success of the law office.
The benefits of automation should be
considered by those who have not
automated and should be reviewed
by users. Those that have not
automated will see the deficiencies in
their operations and the users will be
encouraged to fully utilize the power
of the hardware and software that
they have purchased. Not including
word processing, which should be
automated in every law office at this
time, these are the four major
classifications of law office software
and some of the benefits which
should be enjoyed from their use in
the law office:
Time and Billing:
Easily provide access to client
names, addresses and telephone
numbers.
Provide immediate access to
current financial and client data on
demand.
Increase overall efficiency and
prod ucti vi ty.
lmprove cash flow.
Increase law office profits.
General Ledger, Trust Accounting
and Accounts Payable
Integration with the billing
system to eliminate duplicate entries.
Standardization of reporting with the
use of a chart of accounts.
Monthly reporting of income and
expense and comparison to budget
and previous periods.
Monthly reporting of the law
office assds, liabilities and capital on
a balance sheet.
Ability to analyze information
for budget and cost containment
purposes.
Automatic transfer of trust funds
to the billing and general ledger
Keduce the amount of repetitive
system. Review of trust account
clerical tasks and duplicate entries.
Reduce the month end work
load.
Reduce the amount of time spent
billing clients for attorneys and staff.
Flexibility of billing formats.
transactions and balances of client
funds.
Reduce time in preparation of
accounts payable checks.
Facilitates cash management by
anticipating cash requirements.
DOCUMENT MANAGEMENT
( LlTiGATlON SUPPORT)
SOFfWARE
Store documents in full text
and/or document abstracts.
Efficient search of multiple files.
Ability to perform proximity and
conditional searches.
Produce management reports to
allocate resources and identify
problem areas.
Reduce write-offs caused by late
or undetailed bills.
Reduce the amount of unbilled
time and disbursements through the
use of Work in Process reports.
38
ARKANSAS LAWYER
SUMMER 1993
Encourage productivity of
lawyers and staff.
Reduce outstanding Accounts
Receivable.
Ability to add and search notes
added to documents.
Listing of documents which meet
search criteria.
CASE MA AGEMENT
SOFfWARE
Tracking of case data including
case name, case value, case type,
incident information, attorneys
involved, fee arrangement and
referral information.
Tracking
of
plaintiffs,
defendants, witnesses, expert
witnesses, doctors, insurance policies
and adjusters.
Provide information on court and
arbitration information including
judge, court, term and number, trial
date. Statutes of limitation are
calculated to insure that important
deadlines are met. Conflict of interest
checking of all parties included
related parties.
Ability to store notes on case.
Report on the status of case
events.
Law
offices
that
are
not
automated or are only partially
automated should consider the
benefits of automation and make the
decision to move forward with an
investment in the future of the law
office.
Jerry SchWllrtz is the presidellt of Legal
Management Services, [rIC. of Memphis,
Tennessee, a consulting and management
services firm specializiflg in profitability
improvenumt for small and medium size law
offices.
LAW,
LITERATURE
&
LAUGHTER
ACouple of Devilish
Con Law Cases
By Victor A. Fleming
In the continuing saga of whether
judicial opinions, pleadings, or sworn
testimony is the most entertaining, Lynn
Lisk of Little Rock has entered the fray
with a contribution for each category.
Lynn's first entrant is U.S. ex rei.
Gerald Mayo v. Satan and lIis Staff, 54
F.R.D. 282 (U.S.D.C.W.D. Pa. 1071) (a
hard-back law book). District Judge
Weber's opinion reads, in salient part, as
foUows:
"Plaintiff...alleges that Satan has on
numerous occasions caused plaintiff
misery and unwarranted threats, against
the will of plaintiff, that Satan has placed
deliberate obstacles in his path and has
caused plaintiffs downfall.'" Sounds like
the Satan that we all know so well. The
opinion continues:
"Plaintiff alleges that by reason of
these acts Satan has deprived him of his
constitutional rights.... ITlhe Court has
serious doubts that the complaint reveals
a cause of action upon which relief can be
granted by the court. We question
whether plaintiff may obtain personal
jurisdiction over the defendant in this
judicial district....WhiJe the official reports
disclose no case where this defendant has
appeared as defendant, there is an
unofficial account of a trial in New
Hampshire where this defendant filed an
action of mortgage foreclosure as
plaintiff. The defendant in that
action ... raised the defense that the
plaintiff was a foreign prince with no
standing to sue in an American court.
This defense was overcome by
overwhelming evidence to the contrary.
Whelher... this would raise an estoppel in
the present case we are unable to
determine at this time....
"We note that the plaintiff has failed
to include with his complaint the
required form of instructions for the
United States Marines for directions as to
service of process.... It is ordered that the
complaint be given a miscellaneous
docket number and leave to proceed in
forma pauperis be denied:路 So much for
Lynn's entry into the judicial opinion
division.
As to pleadings, Lynn submits
documentation from the Little River
County Chancery Court, filed in a 1990
case. In a "Civil Complaint" against the
local prosecuting attorney, the plaintiff
alleged as follows:
"Plaintiff... challenges the acts of
governmental functions by the
defendants herein as they be no contrary
to the Arkansas State Constitution of 1874
under the provisions of Article 2 and
Article 7 as each may be sera tim in the
complaint at bar." Do what? The
complaint continues:
"LAI lawful impanelled jury
convicted the plaintiff of Capital Murder,
and sentenced him to life in prison
without parole. The court rendering the
conviction herein consisted of: [here the
complaint names the judge, the
prosecutor, a deputy prosecutor, and the
court reporter, aU of whom have the same
last narne 2 ]. Each of the named court
officials participating in the case at bar
are all invuikatuib if Arkansas State
Constitution of 1874, Article 7 section 20,
which states as seratim: .. :No judge or
justice shall preside in the trial of any
cause in the event he may be interested,
or where either of the parties shall be
connected with him by consanguinity or
affinity, within such degree as may be
prescribed by law: [The complaint then
goes on the describe the familial
relationships of the named individuals.]"'
Had enough? It ain't over yet. The answer
of the defendant states, inter alia:
"Defendant is not conversant with
the word 'invuikatuib,' ...and would ask
for a definition of same." Whereupon the
plaintiff, in a responsive pleading of sorts,
states: n...Defendant not being conversant
with the word 'invuikatuib' should
research the definition and respond to
Plaintiff." Well, !"ll be! Lynn Lisk has
effectively written the entire column for
this quarter. And I have not yet got to his
testimony entry.3 So, thanks Lynn. Score:
13-12-5.
1. Which, research reveals, was actually
highlighted m LLL in April of 1988-mnking LLL
feel really old. Since five yenrs' worth of new
lawyers have come onto the Arkansas scene since
first mention of this case, it is deemed wort1IY of
second mellti01I-besides, it has
been counted
in the currttlt competition.
2. Readers in Little River County and
surrounding areas may sucussfully guess the
names of these individuals, to whom apologies are
hereby made for any i'lConve"ience this notoriety
may cause them.
3. Which actually is going to require a bit of
research, since what he se"t was from an abstract of
a Supreme Court transcript. Abstracts can be tricky
becaust they often place ill the mOllth of the witness
language actually contained in some outrageous
question asknl by a lawyer. So, watch for more 011
this ~xt issue, but for now to whet your appdite,
suffia it to say that one of the lines from the
abstract is ..[ wanted the dog to tell me what
happened so [got him out of the car with me."
"ever
漏 1993 by Vic Fleming
Editor's Note: This is the second in a twopart series by Mr. Barrier & Mr. Selig. The
first part of tllis article was published in the
Fall 1992 issue of the magazi"e.
SUMMARY: Our first article, in the
October 1992 Arkansas lAwyer, discussed
the historical background and current
context of the Third-Party Legal Opinion
Report ("Report") and Legal Opinion
Accord ("Accord").
The Report and the Accord were
produced over a two-year period by the
Business Law Section of the American liar
Association, beginning with the
"Silverado Conference" in mid-19 9, and
with the final product appearing in the
November, 1991 Business Lawyer (47
Business lAwyer 167).
The entire effort followed
years of discussions, speeches
and articles seeking to develop
uniform standards governing
legal opinions given by
transactional lawyers to parties
to transactions other than their
own clients.
The most common types of
this sort of opinion are those
given by a borrower's lawyer to
that clien~s lender with regard to a
secured borrowing and those
given in connection with business
acquisitions.
Two of the most frequent
sources of conflict in such i.nstances have
been definition of terms and general
scope, i.e., what should be reasonably
asked for and what should be given in
such instances.
The Report as a whole discusses the
issues, while the Accord provides specific
rules or answers to govem those opinions
to which the Opinion Giver and Opinion
Recipient agree the Accord applies. It also
provides an illustrative Opinion to
demonstrate how the application of the
Accord works in a typical transaction.
Finally, the Report provides arguably
its most important contribution by setting
out guidelines for negotiating and
preparing third-party legal opinions,
regardless of whether or not the pa.rties
agree to apply the Accord itself. Sections
40
ARKANSAS LAWYER
SUMMER 1993
1 through 9 of the Accord deal with issues
of scope, disclosure, sources of reliance
and permissible assumptions, all of which
were discussed in the first article. This
article will summarize Sections 10
through 22, which deal with substantive
provisions of the Accord and then briefly
look into the future.
that the "agreement is a legal, valid and
binding obligation, enforceable against
Ithe Opinion Giver's client]. in accordance
with its terms." As noted in the definition
of Remedies Opinion in the Glossary, any
language reasonably similar or which
appears designed to indicate a legally
binding agreement in an Accordgoverned opinion gives rise to the
provisions dealing with the Remedies
Opinion. It is not necessary to include the
terms "in accordance with its terms."
However, failure to use these type of
words which give rise to the Remedies
Opinion means that in an Accordgoverned opinion, no Remedies
Opinion is being given.
CHOICE-OF-LAW
CO SIDERATIONS
Under the Accord, the
Remedies Opinion is given by
the Opinion Giver based on the
law of the opining jurisdiction
being the law which governs
the document opined upon,
without regard to whether the
document being opined on so
provides, i.e., without a specific
contractual governing-law or
choice-of-Iaw provision.
When the jurisdiction of the
client's organization is different
than the opining jurisdiction, that
portion of the Remedies Opinion
which deals with the formation of
the contract is given on the basis of the
law of the client's jurisdiction to the
extent that such law governs the client's
organizational status, good standing, and
authorization of the transaction and the
document, unless the opinion letter
expreSSly states different assumptions or
relies on an opinion of other counsel as to
these matters.
If there is a governing law provision
in the transaction document and it
chooses the law of the opining
jurisdiction, then the Remedies Opinion
implicitly includes an opinion that the
choice of law contained in the agreement
itself will be given effect under the
opining jurisdiction's choice of law rules.
On the other hand, if the transaction
document chooses the law of some other
~
THE "REMEDIES OPINIO "
Section 10 covers the "Remedies
Opinion," a central element in almost
every legal opinion. Under the Accord,
that term means an opinion (a) that a
contract has been formed, (b) that a
remedy as to each agreement in the
contract is available or will otherwise be
given effect, and, (c) where the opinion
expressly states that a certain remedy is
available, that that remedy will in fact be
available as stated in the opinion.
The Opinion Giver and Opinion
Recipient must also look to Sections 11
through 14 dealing with the General
Qualifications to the opinion, to which
Remedies Opinions are specifically
subject. Typically, a Remedies Opinion in
a non-Accord transaction is a statement
jurisdiction, or does not contain a
governing-law provision, then the
Remedies Opinion will not include an
opinion as to what law governs.
EXCLUSIONS FROM COVERAGE
The Accord provides that the relevant
laws of the opining jurisdiction are the
laws of contract and such other laws in
the opining jurisdiction that a lawyer
exercising "customary professional
diligence would reasonably recognize to
be directly applicable...." Omniscience is
not presumed.
Sections 18 and 19 specifically
exclude certain matters from the opinion's
coverage and thus the Remedies Opinions
also exclude those matters unless
explicitly so indicated. Thus, if the
document being opined upon contains an
arbitration provision, then what the
Remedies Opinion means as to that
promise is that the arbitration provision
will be given effect but it does not deal
with how disputes would be resolved by
that arbitration. Just as other substantive
provisions, the remedies provision is
subject to any exceptions, qualifications or
limitations which may be set out in the
opinion letter.
"GENERAL QUALIFICATIONS"
The Remeclies Opinion is also subject
to the "General Qualifications" which are
specified in Section 11 as the Bankruptcy
and Insolvency Exception (Section 12), the
Equitable Principles Limitation (Section
13), and Other Common Qualifications
(Section 14).
It is possible to have the General
Qualifications provision applicable to
opinions other than the Remedies
Opinion, but in that instance, the opinion
must specifically say so, unlike the
Remedies Opinion in which the General
Qualifications are applicable unless the
opinion indicates specifically to the
contrary.
Occasionally, an Opinion Recipient
will request that the Opinion Giver
provide an assurance that none of these
exceptions interfere with the "practical
realization" of the Opinion Recipient's
rights under the transaction document.
Section 11 indicates that this qualification
is beyond the scope of the Accord. Thus, if
the parties want to use the concept, it
must specifically be included. The
commentary indicates that, even if that
language or similar language is included,
it does not overrule the General
Qualifications.
Further, the Guidelines for
Negotiation and Preparation of ThirdParty Legal Opinions provide that, while
this is a matter subject to negotiation by
the parties, assurances like "practical
realization" are necessarily imprecise.
Additional definitions of terms may be
required. In any event, the Guidelines
neither endorse nor disapprove of this
kind of assurance.
SPECIFIC EXCEPTIONSBANKRUPTCY (Section 12)
The Bankruptcy and Insolvency
Exception basically means that the
opinion to which this exception applies is
subject to bankruptcy Jaws, insolvency
laws, and similar laws which affect the
rights of creditors generally. It includes
state or federal moratorium, receivership,
assignment for the benefit of creditors,
and similar laws, state fraudulent transfer
laws, and similar judicially-developed
doctrines. It also includes those federal
laws which are applicable only to certain
kinds of debtors or affect only certain
types of creditors, such as financial
institutions and insurance companies.
However, laws that may affect creditors
generally but are not based upon
bankruptcy, insolvency or similar
concepts, such as certain provisions of the
Uniform Commercial Code or laws
dealing with usury, are not included
within this exception. Accordingly, if
there is a provision in one of those laws
which might affect the enforceability of a
provision, it is necessary to specifically
describe that effect unless one of the other
general qualifications deals with it.
SPECIFIC EXCEPTIONS EQUITY (Section 13)
The Equitable Principles Limitation
basically provides that the opinion for
which this limitation is applicable is
subject to general principles of equity,
whether applied by a court of equity or a
court of law. The limitation includes
principles requiring good faith and fair
dealing, reasonableness, materiality of
breach, impossibility or impracticability of
performance and unconscionability of the
enforcing party's conduct. The Equitable
Principles Limitation principally deals
with the conduct of the parties after the
contract has been entered into and the
impact of that conduct on enforceability.
However, if, when the opinion letter is
being given, the Opinion Giver has actual
knowledge that one of these equitable
principles would limit the enforceability
of a particular promise or of the entire
contract, thereby rendering that provision
or the contract generally unenforceable ab
initio - for instance, knowledge that one
party cannot possibly perform the
contract as written - the commentary
makes it clear that No Remedies Opinion
should be given or, if it is given, that this
issue should be brought specifically to
the attention of the Opinion Recipient in
the letter. Gamesmanship is discouraged.
OTHER COMMON
QUALIFICATIO S:
Section 14 sets out the Other
Common Qualifications. These include, to
the extent that they are applicable both to
the provisions of the contract covered by
the opinion and by the law of the opining
jurisdiction, legal requirements which
deal with the sale or disposition of
collateral; the fact that forum selection
clauses may not be binding on the court in
the forum selected; rules regarding the
election of remedies; laws which provide
for judicial discretion in determining
damages and attorneys' fees; and laws
which give a party the right to cure
default in certain circumstances.
NO BREACH OR DEFAULT:
Section 15 covers the "No Breach or
Default Opinion." As defined in the
Glossary, that opinion is the opinion
which states that, (a) the execution,
delivery and performance of the
agreement does not violate the basic
governing documents (the articles and
bylaws) which are defined as the
"constituent documents," (b) does not
breach or result in a default under "any
other agreemenY' (defined in the Glossary
as contracts other than the transaction
documents to which the client is a party
or by which its property is bound) and (c)
does not breach or otherwise violate any
obligation of the client under a court
order (which includes administrative as
well as judicial orders which either name
the client or are specifically directed to it
or its property).
Section 15 provides that the other
agreements and court orders with which
the opinion deals are those that are either
specifically identified or which can be
identified in a manner described in the
opinion letter. As is common in nonAccord practice, the term "breach or
defaulY' also includes any act which, with
the giving of notice or passage of time, or
both, would constitute an event of default.
In order to give the 0 Breach or
Default Opinion, the Opinion Giver must
only determine whether the terms of a
transaction
document
and
the
performance of its agreements would
constitute a breach or default under
another agreement or violate the specific
terms of a constituent document or court
order based on information provided the
Opinion Giver pursuant to Section 3 and
other facts of which he has actual
knowledge.
This may require inquiring of the
client and reviewing of other contracts,
but the No Breach or Default Opinion is
not deemed to include permissive action
or conduct by the client under a
transaction document unless such action
or conduct takes place simultaneously
with, and the Opinion Giver has actual
knowledge that it constitutes part of, the
consummation of the transaction.
NO VIOLATION OF LAW
The No Violation of Law Opinion,
pursuant to Section 16, means that the
execution and delivery of the specified
document and the performance by the
client of its terms is not prohibited by any
statute or regulation in the opining
jurisdiction that a lawyer "exercising
customary diligence" would reasonably
recognize as being applicable nor would it
similarly subject the client to a fine or like
sanction. The
0 Violation of Law
Opinion arises when language similar to
"execution
and
delivery
by
of, and performance
by
[the Opinion Giver's
_
client] of its agreements in
[the document(s) opint::J upon] do not
violate applicable provisions of statutory
The
No
law or regulation."
Violation of Law Opinion plugs some of
the holes left by the Remedies and other
Opinions but is not a substitute for them.
It is designed to tell whether performance
by the client will give rise to a sanction for
violating a statute or regulation. It is not
an opinion that the client is in compliance
with all applicable or "material" laws
generally, and as is pointed out in the
commentary, a request of that breadth is
inappropriate.
Since the opinion speaks as of its
date, to the extent that future conduct of
the client might fall within the purview of
a No Violation of Law Opinion, that
opinion relates onJy to conduct which is
required in order to comply with the
agreement.
NO PENDING ACfIONS
Frequently an Opinion Giver is called
upon to include in an opinion a statement
that there are no legal proceedings
pending or threatened against the client.
Section 17 of the Accord makes it clear
that this is really not a legal opinion at all.
It is merely a confirmation based on
information provided to the Opinion
Giver by others under Section 3 and the
Opinion Giver's review of its own
lit.igation docket or other internal means
for monitoring litigation.
The Accord also makes it clear that
no review of court or other public records
is necessary nor is it necessary to
undertake any broader review of the
Opinion Giver's files.
The commentary further indicates
that, in the absence of very special
circumstances, a request should not be
42
ARKANSAS LAWYER
SUMMER 1993
SURVEY MEASURES AWARENESS
In the fall of 1992, R. Bradbury Clark with the O'Melveny & Myers law
firm in Los Angeles sent a detailed questionnaire on the Report and the
Accord to approximately 470 lawyers over the country. The purpose of this
canvass was to gather data for talks Clark was to give to American Bar
Association gatherings in December 1992 and January 1993.
In particular, Clark was seeking to measure the level of "awareness of
and general familiarity with" the Accord, extent of usage and acceptance,
"comfort level" with it, problems encountered and methodology in actual
practice.
The recipients were either members of the ABA Ad Hoc Committee on
Opinions (the successor to th" "Silverado" group); members of firms
insured by Attorneys Liability Assurance Society; or acquaintances of Clark
with an interest in the subject.
Nearly 40% responded, with a good geographic spread and not too
much concentration among Wall Street firms. Those responding were
generally familiar with the Accord (although Clark suspects that may mean
the non-responding 60% were not). Those responding also indicated a high
level of approval and support for the concept and general approach of the
Accord.
However, they also expressed an equally high level of caution in
pulling the Accord into general use without a lengthy period of trial and
adjustment. Even among those firms which had "decided to adopt the
Accord," only a third had actually done it.
Some resistance among Opinion Recipients was reported, and even
some lawyers favorable to the general concept found the actual Accord too
complex and rigid to be broadly useful, with specific deficiencies ated as to
the Remedies Opinion, its Qualifications and exclusions, and state law
issues commonly addressed in traditional opinions, such as incorporation
and due authorization. Most felt private ordering would have to be used
routinely to make the Accord fit specific transactions, from both the
standpoint of Opinion Givers and Opinion Recipients. The Commentary
and the Guidelines were popular, as drafted.
Clark expects som" "xpansion of the Accord's subject matter,
specifically on the state law issues, and some attention to the problem areas,
but is uncertain as to the pace of acceptance. We see as a possible scenario
fairly rapid acceptance and adaptation in perhaps one area, followed by
national acceptance in rather short order of the version of the Accord
produced by that experience.-John Selig & Chris Barrier
made of the Opinion Giver to eva.luate the
possible outcome of legal proceedings.
Where that kind of evaluation is to be
provided, the Opinion Giver's response
should conform to the American Bar
Association's Statement of Policy
Regarding Lawyers' Responses to
in the expressed opinion, but based upon
"prevailing norms and expectations
among experienced lawyers in the
opining jurisdiction" it is reasonable
under the circumstances giving rise to the
opinion.
Auditors' Requests for Information (1975).
OTHER QUALIFICAnONS
AND LIMITATIONS
Sections 18, 19 and 20 of the Accord
addressed in the opinion letter, an opinion
deal with certain other qualifications and
limitations in opinions. Section 18
provides that an opinion only deals with
those matters explicitly addressed in the
opinion. The only way that an opinion on
an issue can be i.mplied is if it is not only
essentiaJ to the legal conclusions reached
Section 19 states that unless explicitly
governed by the Accord does not deal
with securities laws; pension and
employee benefit laws; anti-trust laws;
local law; the creation, attachment,
perfection or priority of a lien on real
property or a security property;
environmental laws; land use laws and
other similar laws. These laws generally
are of the type which Opinion Recipients
would want to receive special mention
and thus there should not be any
expectation of coverage absent specific
language covering these laws.
RELIANCE AND USE
It has become commonplace in
Arkansas and elsewhere in non-Accord
situations to specifically state in the
opinion who may (and who may not )rely
on the opinion. tn Arkansas, Act 661 of
1987 has had a hand in the development
of this process. This concept is continued
in Section 20 of the Accord. If something
different is desired, then it needs to be
specifically stated either in the opinion
letter or in a separate document. Further,
under the Accord and in common nonAccord practice, the opinion letter may
not be used or relied upon or furnished to
persons other than regulators, in
connection with defending an action in
which the opinion is involved or in
response to a court order.
"PRIVATE ORDERING"
Section 21 deals with the issue of
modification which is called "private
ordering" in the Accord. Essentially, the
Accord provides that any provision may
be modified, supplemented or deleted,
and, if agreed to by both the Opinion
Recipient and the Opinion Giver,
arbitrary assumptions may be employed
and other legal interpretations or other
facts and circumstances may be expanded
upon that may not be consistent with the
Accord. So long as those are spelled out
with reasonable particularity, the private
ordering will control.
ADOPTION:
Section 22 deals with how the Accord
may be adopted. To do so requires a
declaration in the opinion letter
substantially as follows: "This opinion
lelter is governed by and shall be interpreted
in accordance with the 'ugal OpitJion Accord'
of the ABA Section of Business Law (1991).
As a consequence, it is subject to a number of
qualifications, exceptions, definitions,
limitations on coverage and other limitations,
all as more particularly described in the
Accord and this opinion letter should be read
in conjunction therewith. The law covered by
the op;nio1l expressed herein is limited to
(specified jurisdictions)."
The Report closes with an illustrative
Opinion Letter which demonstrates how
the Accord can be adopted as governing
the opinion, defines who constitutes the
"primary lawyer group", states who may
receive and rely on the opinion, and
provides for a Remedies Opinion, a No
Breach or Default Opinion, and a 0
Violation of Law Opinion. It also confirms
the absence of any threatened or pending
litigation.
1
WHERETIllNGS STAND:
Aside from its merits or demerits, the
Accord represents change, which is
sometimes unsettling. Many different
groups of lawyers are reviewing the
Report and determining its utility for their
specific practices or concerns.
The National Association of Bond
Lawyers (a group to whom opinions are
of paramount importance) is studying the
Accord in light of NABL's own Model
Bond Opinion project, which is actually a
similar effort in a more specialized area.
NABL's Committee on Opinions is,
understandably, proceeding cautiously.
NABL's spring quarterly newsletter (The
Quarterly Newslelter, National Association
of Bond Lawyers, Vol. 13, o. 2, May 1,
1992, Pages 14-21), contains a very
measured analysis of the Accord, listing
reasons why adoption of the Accord
might be beneficial in bond transactions,
especially as to approving opinions, and
citing parallels in the Model Bond
Opinion itself.
However, the Committee's "interim
report" (The Quarterly Newsletter, ational
Association of Bond Lawyers, Vol. 14, o.
1, February 1, 1993, Pages 17-22) finds
more reasons not to use the Accord in
bond transactions - specifically (I) the
general absence of legal representation for
bond purchasers, leaving no one to
negotiate such opinions, and (ii) the
exclusion from Accord opinions (absent
private ordering) of tax and local law
opinions, both essential elements in bond
opinions.
The Tri-Bar Opinion Committee in
New York City (active in this area for over
a decade) has analyzed use of the Accord
in "non-customary financing transactions" [47 Busi"ess Lawyer, 1720-1730
(1992), at page 17211 and has "concluded
that the Accord can be adopted for use in
specialized financing transactions." 147
Busilless Lawyer, 1720 (1992) at page 17221
That committee's analysis goes on to
explore possible problem areas that
require special attention before the
Accord can be effectively used, including
perfection of security interests in project
revenues, significance of equitable
remedies, and characterizations of lease
transactions.
Yet, it also finds the
clarification as to required diligence a
major step forward, (even if the
presumption against implied opinions
may require lawyers requesting opinions
to think harder about what they are
actually getting).
AND WHERE WE'RE HEADED
It may be that at least some Accord
concepts will become absorbed into
efforts such as the Model Bond Opinion
without a specific embrace of the Accord
itself.
A subspecies of Accord may develop
for "specialized financing transactions,"
that will become their starting point,
rather than going all the way back to the
Accord itself. Perhaps alternative
glossaries will be necessary.
But, it is well to keep in mind that the
authors of the Report and Accord have
expected a gradualist and even
evolutionary approach rather than
anticipating (or even wanting) wholesale
acceptance and adoption. (See the
accompanying article.) In this regard,
Arkansas practitioners certainly have not
disappointed them. To date, explicit use
of the Accord in Arkansas has been
sparse.
However, the Guidelines and the
underlying philosophy of the Accord in
fact are being used with increasing
frequency. The limited use of the Accord
here is due in part to a lack of familiarity
with it, the apparent absence of
practitioners elsewhere using the Accord,
and the general reluctance of lawyers to
use something that is both untested and
not used by other lawyers.
As Arkansas lawyers get a chance to
become more familiar with the Accord
and as more lawyers use it in other states,
we can reasonably expect to see the
Accord commonly used in the future,
perhaps in more than one permutation, as
to specialized transactions, or perhaps in
pieces. Certain elements of the Accord,
such as its concepts of "actual knowledge" and "primary lawyer group," are
already being used with some increased
frequency and acceptance in Arkansas.
The crafters of the Accord were
motivated by the pressing need for order
in the seeking and giving of legal
opinions. The success of the Accord in
providing that order points to its eventual
acceptance, in Arkansas and the nation.
JOHN SELIG and CHRIS BARRiER are
partners practici"g in the Little Rock office of
Mitchell, Williams, Selig, Gates & Woodyard.
Selig is a former bank holdillg compallY
general counsel and former Arkansas
Securities Commissioner, and chaired the
panel on third party legal opi"io"s at the 1992
Financial Institutions lAw Seminar.
Barrier was program Chair for the
Seminar and served for the second time as
Chair of the Financial Institutions Law
Section of the Arkansas Bar Association i" tile
1992-1993 bar year. Selig and Barrier
preViously co-authored "Revenue Bo"d
Financing in Arkansas" for Ti,e Arka"sas
Lawyer.
Communities Give Feedback
in Pretrial Services
By Judy Camp
The reporter's voice on the other end
of the phone searched for answers, "I
have a questionnaire that was mailed out
to people in this area asking their opinions
in a local murder case. Can you tell me
who might have mailed it and how
lawyers might use this information?'"
As a researcher who provides
community surveys and focus groups to
attorneys, I twinged at the thought of a
mail survey in a high profile case. Though
market re earchers have used mail
surveys to collect information for decades,
its limitations and biases are widely
known .â&#x20AC;˘ In the context of a legal case,
where attorneys seek information to
support a change of venue or to help
construct juror profiles, the mail survey
ri ks much. Most obviously, as with the
example above, it risks the public, rea)
jurors in the case, and the opposition
finding out about it. It also risks collecting
biased information from a limited group
of people.
Because of increased media coverage
of the justice system and the public's
appetite for news, it is hard for
responsible citizens not to be aware of
major cases in their community. Attorneys
in these cases may find it nearly
impossible to select an impartial jury, and
community surveys can help them gage
widespread attitudes and beliefs about
their clients. However, among litigation
researchers, telephone surveys and
personal interviews have proved more
valid and practical methods for gajlling
this feedback.
Telephone surveys especially have
gained popularity in pretrial preparation.
This is mainly due to widespread
telephone distribution. (The U.S. Census
shows 99% of all American households
have telephones.) It is also due to
44
ARKANSAS lAWYER
SUMMER 1993
developments in telephone research
techniques which increase validity.
(Documented research exists on research
designs, questionnaire construction,
question writing, sampling technjques, _
viewing techniques. 2) Telephone surveys
also offer attorneys immediate feedback
with no "paper trail" in the community.
Thomas Beisecker, a litigation
researcher and professor teaching
graduate statistical research in the
University of Kansas Department of
Communication Studies, explains, "The
manner used to collect data in litigation
research is much different than the
manner in which market researchers
collect data to sell soap."
Beisecker says attorneys who need
information on community attitudes
should use consultants who specialize in
jury and litigation research rather than
using marketing firms, because these
consultants understand the constraints of
such information and how to use the
research under these constraints. He says,
"Litigation researchers can design a study
for help in developing the case theory,
and they understand what issues are
important and how the information will
be used." Consultants who specialize in
providing research to the legal
community are more than data collection
agencies; they can interpret research
results for use throughout jury selection
and the trial process.
Beisec.ker's firm, Advocacy Research
Associates in Lawrence, Kansas, consults
to attorneys nationwide and provides
community surveys and change of venue
studies using telephone research. He says
his firm would never consider a mail
survey, because "you have too great a
possibility of a low response rate and a
non-respondent bias which skews the
Artwork by Kitty Harvill
results. You also have no control over
who is filling out the questionnaire."
(Remember The Simpsorrs episode where
Bart has fun filling out Homer's mail
questionnaire with bizarre answers?)
In addition to the high risks of
someone else filling out the questionnaire
or the media finding out about the study,
direct mail surveys also possess serious
limitations due to low response rates.
Mail surveys with response rates over
30% are rare, and often they are only
about 5 - 10%.3 That means that over 9
out of 10 people who are surveyed may
not respond! Since the reliability of data
depends on the number of questionnaires
obtained, not the number of surveys
mailed, the most important consequence
of a low response is the "non-response
bias" that is likely to result. If respondents
randomly completed or failed to complete
and return the questionnaire, there would
be no bias, but that is seldom the case.
Usually the person's characteristics,
attitudes, opinions, and interest in the
topic determine whether or not a
questionnaire recipient will complete and
return it or discard it. Thus, some groups
tend to be overrepresented and others
underrepresented in the sample, creating
biased results. 4
Robert Hirschorn, a lawyer and jury
consultant with Bennett and Associates in
Galveston, Texas, recently co-authored a
book on jury selection and trial dynamics
with the late Cathy Bennett which
includes a chapter on survey works.
Hirschorn says that lawyers could run
into ethical questions regarding jury
tampering when using a mail out survey,
but the benefits of community telephone
surveys and face-to-face, personal
interviews are multi-focal. "First," he
says, "they are helpful for gaining a
change of venue, but in civil cases, they
are also helpful for detecting the 'hot
issues' in the community and for giving
juror profiles for use during jury
selection."
Hirschorn's finn uses both telephone
survey techniques and personal
interviews to collect community data. He
and Bennett have consulted on some of
the nation's largest and most publicized
cases, including more recently the Texas
Cheerleader and William Kennedy Smith
trials. In the Howard Hughes Will case,
Hirschom's finn provided 200 face-to-face
interviews lasting 30-minutes each in
order to gain feedback on issues and to
construct juror profiles.
These face-to-face interviews are
often warranted when more complex and
intricate recording of data by a field
worker is needed. A two-way
conversation provides for several
"contingencies." where the question to be
asked depends on a previous response. 6
Telephone surveys are limited by the
amount of time people will reasonably
spend answering questions; as
questionnaires become longer and more
complex, people are more hesitant to
complete telephone surveys. In face-toface interviews, a large amount of data
from each of the respondents can be
collected.
Hirschhorn says that the key to a
good community analysis is the design of
a neutral instrument (questionnaire)
which is not tainted or weighted on any
factor. In order to do this, he says,
attorneys should hire neutral experts such
as jury and litigation researchers to design
the instruments. This neutrality of experts
should also extend to the study's analysis
and interpretation of the results. "Vou
cannot have the attorney looking at the
data." Hirschhorn says, "and saying, 'I
knew it would show this,' because it
would be a biased interpretation of the
results." However, a neutral statistician
can come up with trends to suggest for
jury selection which are more valid
interpretations. When studies are to be
used in court to support change of venue
motions! both Hin:;chhorn and Beisecker
agree that the standards for research need
to be strict, because the researcher is often
called to defend the survey's methods.
The study's purpose often determines the
degree of record keeping and monitoring
of the actual interviewing. "For a juror
profile analysis," Hirschhorn says," you
have a questionnaire that is attorney work
product, and it is to be used for internal
purposes. However, a change of venue
instrument is held up for your opponent
to give feedback on, and much more care
and planning needs to go into this type of
study."
Beisecker notes that "judges have
become more familiar with community
surveys, either through thei.r experiences
on the bench or through their educational
backgrounds," and he says survey
research carries more weight now than it
did a decade ago. Hirschhorn further
notes, "My universal experience is that
when surveys are prepared by the lawyer
or when lawyers take part in the
questionnaire design, there is much less
credibility and acceptanre in the court, so
there is less likelihood of achieving the
survey's goal."
However, Hirschhorn also says that
in low budget cases where professional
surveys or jury focus groups are cost
prohibited, lawyers may feel they have no
option. "You either go with your gut
feelings not knowing the community's
response, or you get volunteers, a neutral
survey questionnaire, and 100 to 200
people to respond to it, preferably by
telephone." For a juror profile analysis!
Hirschhorn says, "this might be better
than no information at all, but the work
would have to be quite different for a
change of venue:'
Representative samples of jurors can
also give community feedback on case
issues in focus group research. Focus
group studies also allow people to
complete questionnaires after being more
adequately screened. Participants also
sign contracts before the research, SO the
chance for a breach in confidentiality
about the study is lessened. Focus groups
are one way attorneys are able to try out
the intricacies of their cases on the
community! while telephone studies
provide feedback on wider issues.
Methods for Conducting
Telephone Research
Deciding which cases could benefit
from community data is not as difficult as
constructing research to provide specific
answers. However, by understanding the
basic standards and methods for
conducting telephone research, attorneys
can better evaluate researchers and survey
designs. Telephone surveys commonly
help in cases with extensive pretrial
publicity, limited voir dire, or community
bias. The later includes cases involving
racial minorities, prominent citizens,
political issues, or aspects which will
affect jurors or local residents. 7
Some answers which community
surveys provide are:
1. The retention of information
concerning a high media profile case;
2. The client's name recognition level
and image;
3. The opinions of the clienrs guilt or
innocence;
4. The public's accuracy of
information;
S. The spread and belief-value of
information which will not be admissible
in court; and
6. The community's ability to give the
client a fair trial. s
The study's design! administration,
and interpretation rely on scientific
techniques to produce valid results. For
this reason, researchers give careful
attention to questionnaire design,
sampling, the study's personnel!
interviewing techniques, and data
analysis.
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46
ARKANSAS LAWYER
SUMMER 1993
Questionnaire design
Questionnaire construction requires
special knowledge and skill, especially
when results will be used in court. 9
Question structure, order, wording, and
verbal presentation can affect the type of
information in respondents' answers. to
Including both open- and closed-ended
questions in the instrument allows
researchers to demonstrate that the
respondents' answers were not led to
benefit the survey's sponsor. For example,
mentioning the name of the case in a
questionnaire to measure the effect of
pretrial publicity (Q: "Have you heard of
the Jones murder case?" A: "Oh, yeah, I
remember reading about that.") would
not give as valid an indication of the
community's recollection of the case as a
more general, open-ended question (Q:
'What murders have you heard of in your
community in the last six months? A:
"The Jones murder.") For these reasons,
attorneys work closely with survey
professionals to define the study's
purpose before researchers construct
questionnaires. I I
Researchers design questions to
solicit four basic types of information: 12
1. What people say they want: Their
attitudes
2. What people think is true: Their
beliefs
3. What people do: Their behavior
4. What people are: Their attributes
(demographics)
By providing specific information in
the questionnaire's introductory message,
the researcher adheres to ethical
principles of research on human
participants. 13 Mandatory items include
giving the research organization's name,
the study's general purpose, and the
interview's approximate length. The
researcher must also assure the
respondents' confidentiality and give
them opportunities to refuse participation
and ask questions. 14 The questionnaire
also screens respondents to ensure that
data comes only from those who are
eligible for jury service.
Asking personal information, such as
income, race, religion, or behavior,
requires skill in wording to obtain truthful
responses and to prevent respondents'
from "dropping-out" of the study.IS
Simple questionnaires include about 20
questions and take about ten minutes to
complete. Longer questionnaires require
highly skilled and experienced
interviewers to reduce "drop-out" rates.
The questionnaires are also constructed so
that interviewers can easily record
responses and so that statisticians can
easily code these responses for analysis.
Pretesting the questionnaire as it is drawn
up verifies the validity and clarity of each
question as well as the overall design of
the instrument.
Pretesting will also suggest the range
of possible and probable responses likely
for each question, allowing for
simplification in coding responses.
Sampling
Sampling involves selecting a group
from the total population to be surveyed.
For valid survey results, every person in
the group must have an equal chance of
being selected for contact. In litigation
research, the group includes all people in
the community eligible for jury service.
Since jurors are not always representative
of U.S. Census statistics,I6 past juror lists
can determine the respondents' necessary
characteristics and sample size for
representativeness. If a representative
sample is not obtained, the survey
findings can become inadmissible. I7
To contact respondents, researchers
use several methods to obtain a random
selection: 1) computer-assisted, randomdigit dialing, 2) a systematic random
selection using the telephone directory (in
communities where unlisted numbers are
low and telephone service high), and 3) a
two-stage survey approach where special
telephone lists are constructed prior to the
interviews using pertinent juror
demographics. IS Random-digit dialing
adds time and expense to surveys, but it is
necessary where a high percentage of
unlisted numbers and new listings are not
represented in telephone directories. 19
Study Personnel
Survey personnel include a principal
investigator, a project director, and
interviewers. The principal investigator
has knowledge of the study's purpose and
works closely with attorneys. This person
also constructs the questionnaire,
determines the survey's sample, and
helps interpret results. A project director
administers the study and oversees the
coding and analyzing of data; the director
also trains and supervises all interviewers.
To assure maximum accuracy of data,
neither project director nor interviewers
know the study's sponsor. This way, they
cannot influence the study's conclusions,
a phenomenon known as "interviewer
bias."20
Interviewing
In order to collect unbiased data,
interviewers read introductions and
questions exactly as they appear on
questionnaires. The project director trains
interviewers to answer potential
questions from respondents and provides
an answer key. Interviewers record all
responses and remarks word-for-word.
This applies to open- and closed-ended
questions. Most importantly, interviewers
do not interpret questions or inject
remarks. Although they do not know the
client's identity or study's purpose,
interviewers can be called to testify when
field procedures are questioned in court. 21
lnterviewing is always conducted in
a centralized location to allow the project
director control of basic procedures.
Telephoning is completed as efficiently as
possible, in two or three days, to prevent
the respondents' prior knowledge of the
survey.22 In small communities, where
rumor spreads quickly, telephoning is
usually completed in one day. In large
cities, survey design, implementation, and
analysis can take several weeks, especially
when results will be used in court.
Researchers can increase responses to
telephone interviews by scheduling
studies in prime months and at prime
times. The best months in which to reach
the greatest number of respondents are
January to April. Undesirable months for
survey research are June through August,
due to the number of people taking
vacations, and December is the worst
month for telephone research. 23 The best
time periods for calling are Friday from 7
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Analysis
When using computer analysis,
resea.rchers numerically code each answer
for computer interpretation. Open-ended
questions require special coding and extra
time. The actual analysis should be done
by an independent, neutral statistician,
especially when the study is to be used in
court, because this expert witness must
justify any generalizations of survey
results. 25
Statistical analyses which are
commonly used in litigation research
include a frequency distribution, which
gives the percentage of responses under
each question, and a cross-tabulation,
which shows the relationship of one
response to another. For example, "How
many people consider the client guilty?"
versus "How many could give a fair
trial?". Profiles of desirable and
undesirable jurors require multi-variate,
regression, interaction, or discriminant
analyses. These techniques show
demographically how types of people are
likely to feel on certain issues and their
probable behavior in the jury room. 26
Conclusion
In addition to giving documented
support for change of venue motions,
community surveys, when professionaUy
conducted, provide reliable and objective
information about jurors. These surveys
aid lawyers by assessing attitudes predictive of jurors' thoughts and fedings.
Surveys can also give valuable input for
constructing opening and closing statements and for identifying areas of voir
dire. Additionally, the surveys provide
information for: 27
1. Determining the most or least
desirable juror profiles;
2. Testing trial straLeg'ies;
3. Determining the best jurisdiction in
which to file a lawsuit;
4. Supporting motions for:
A. Lawyer-conducted voir dire;
B. Individual voir dire;
C. Extensive voir dire;
D. Challenge to the jury panel
composition.
More importantly, scientific studies
involving telephone research or personal
interviews reduce the risks of nonresponse bias ana media exposure associated with mail surveys. The information
collected enables the lawyer to form
accurate conclusions regarding jurors and
trial strategies by reducing "the unknown."
As community surveys come of age
in the practice of law, attorneys can better
evaluate resea.rchers and research results
by familiarizing themselves with the
standards and methods for conducting
this type of research. The manner in
which surveys are conducted is just as
important as whether they ilrc used at all.
When surveys are designed and
conducted by those who lack training and
experience in litigation resea.rch, it's likely
that mistakes will be made that diminish
the accuracy of the survey's results. In
addition, there is a strong chance that the
person conducting the research may not
even detect these mistakes.
Community surveys are an aid to
lawyers, but they do not predict with
certainty how the jury will react at the
actual trial or how each juror will
ultimately vote. Telephone surveys and
personal interviews have become tools
for providing information to expose
community biases or prejudices, but
ultimately, they are tools to be welded to
the trial lawyer's knowledge, experience,
and instinct.
Judy Camp, N.A. is a communication
consultant with Camp & Associates, a litigation
research and consulting firm in Little Rock lllat
provides focus groups and community surveys; sIre
is also a faculty member at the University of
ATTORNEY-MEDIATOR SERVICE
WINSLOW DRUMMOND
711 West Third Street
Post Office Box 1401
Little Rock, Arkansas 72203
Telephone (501) 376-3021
Telecopier (501) 374-5118
DISPUTE RESOLUTION THROUGH SETTLEMENT
PRACTICE LIMITED TO LITIGATED MATTERS
48
ARKANSAS LAWYER
SUMMER 1993
Arkansas at Little Rock. 0Per the last terl years, she
has organ.ud and studied uoer ]00 focus groups for
attorneys. and sire has conducttd large commu"ity
attItude surveys ;n cases such as HIt Savings and
Loan crisis i" Colorado and murder-lor-hire througl1
Soldier of Fortune magazi'le i" Florida. SI,e ',as
also participated i" workshops designed to 11e1p
attorneys apply litigation researcll i" their practices
and has authored llumerous articles on focus
groups. jury analysis, and communication in the
legal setting.
Laurent, A. (1972). Effects of Questiorr
Length on Reporting Behavior in the Survey
Intervino. Joumal o{ the Amen'can Statistical
Association, 67, 298-305.
11. F<ey,
J. H. (983). Survey Research by
Telephone.
Beverly Hills, CA: Sage
Publications.
12. Dillman, op. cit.
13. American Psychological Association
(1973). Ethical Principles in the Conduct of
Research with Human Participants.
Washington, D.C.: APA.
ENDNOTES
1. Dillman, D. A. (978).
Mail and
Telephone Surveys. ew York: John Wiley &
Sons.
2. Alreck, P. L. (1985). The Survey
Research Handbook. Homewood, IL: Richard
Irwin, Inc.
3. Alred, op. cit.
4. Alreck. op. cit.
5. Bennett, C. E. & Hirschhorn, R. B.
(993). Bennett's Guide to Jury Selection and
Trial Dynamics in Criminal and Civil Cases.
St. Paul, MN. West Publishing Co. (HlOO-6229266).
6. Alreck, op. cit.
7. Starr, V. H. & McCormick, M. (985).
Jury Selection. Boston: Little Brown &
Company.
8.Id.
9. Dutka, S. (1980). Bus;,res5 CDlIs Opinion
Surveys to Testify for the Defense. Harvard
Busi"ess Review, 58, 40-42.
10. Kahn, R. L. (1957). Dynamics of
Interviewing. New York: John Wiley & Sons.;
and
14. Frey, up. cit.
15. Blair, E. Sudman, 5., Bradburn, N.M.,
& Stocking, C. (1977). How to Ask Questions
about Drinking alld Sex: Response Effects ;'1
Measllri"g Consumer Behavior. }our"al o{
Marketing Research, 14,316-321.; and
Locander, W.B. & Burton, J.P. (976). The
Effect of Question Form on Gathm'ng Income Data
by Telephone. Journal of Marketing Research,
20. Frey, op. cit.; and
Beisecker, T. (1986). Social Science and
Litigation: How Not 10 Justify Demoting
Christine Craft. (A review of survey
procedures in Christine Craft v. Multimedia,
Inc.). Cassette Recording No.2 of the American
Society of Trial Consultants Meeting. Towson
State University, Towson, MD: ASTC.
21. Dutka, op. Clt.
22. F<ey, op. cit.
23. Viderhous, G. (1981). Scheduling Phmle
Interviews: A Study of Seasonnl Patterns. Public
Opinion Quarterly, 45. 250-259.
24. Starr, op. cit.
25. Dutka, op. cit.
26. Frey, op. cit.; and
Starr, op. cit.
27. Starr, up. cit.
Small Office
Practitioner
13,189-192.
16. Camp, D. (985). Melhods 10
Investigate Venire Composition (A Study of
How Community Jurors Compare to U.S.
Census Statistics.) Cassette Recording No.4 of
the American Society of Trial Consultants
Meeting. Towson State University, Towson,
MD: ASTC.
17. Dutka, op.cit.
18. Starr, up.cit; and
Frey, op. cit.
19. Landon, E.L. & Banks, S.K. (1977).
Relative Efficiency and Bias of Ph~s-Otle Telephone
Sampling. !oll,."al of Marketing Researelt, 14,
294-299.; and Rich, c.L. (1977). Is R.Jmdom Digit
Dialing Really Necessary? }o"nlal of Marketing
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A Special Tribute to
E. Charles
Eichenbaum
By Judge John A. Fogleman
E. Cllar'es Eic',enbaltm
How we shall miss him - this giant uf
small physical stature. The Arkansas
Bar Association, the Arkansa Bar
Foundation, the Senior L.lwyer Divi ion
of the American Bar Association. The
William R. Overton Inn of Court, the
American College of Tax Counsel, the
American Law In~titutc, the American
Bar Foundation, the Ozark Folk Culture
Center Commission, the Little Rock
Rotary Club, the Director of the
Offenheimer Foundation, the Levi
Arthritis Foundation, Temple B- ai
Israel, the ity of Little Rock, and
countless friends, shall miss him - along
with his beloved famIly. To each, he
gave unstintingly and un elfishly. To
all he contributed leadership" guidance
and support.
Sometimes his
contributions were recognized,
sometimes taken for granted.
This self-described "worker in the
r~nks" earned the prestigious LawycrCitizen Award of the Arkansas Bar
Association/ Arkansas Bar Foundation
"in recognition and appreciation of the
credit inuring to the legal profession
because
of
your
outstanding
participation In and excellent
performance of civic responsibilities
while at the same time demonstrating a
high standard of professionalism;" the
Golden Gavel Award for outstanding
performance as Chair of the Arkan as
Bar Association Committee; an
honorary doctor of laws degree for
"out tanding service to the University
[of Arkansas at Little Rock!, the legal
50
ARKANSAS LAWYER
SUMMER 1993
profession and his state;" the
Humanitarian Award of the ational
Conference of Christians and Jews; and
the Fifty Year Award of the American
Bar Foundation, bestowed upon "a
lawyer who, during more than fifty
years of practice, has adhered to the
hIghest principles and trauilions of the
legal profession."
lt is difficult to describe this man
adequately. I have tried previously,
""ying:
Whoever fir t attached the title
"Esquire" to the names of lawyers must
have fon'secn E. Charles ("Charlie")
Eichenbaum, that is, if he had in mind
a definition given by Black's Law
Dictionary: "a title of dignity next
above gentleman .. ." Gentility has
characterized Charlie in both his
personal and professional life. He is,
and always has been, a gentleman of
the old school - always kindly,
courteous, mannerly, and graciously
elegant.
Devotion to the legal profession and
observance and promotion of the
highest professional and ethical
standards have characterized his career
and his life. If all lawyers followed his
pattern of profeSSionalism, our
profession would be held in much
higher esteem.
His devotion to his profession and
community was only exceeded by his
devotion to his lovely, charming and
talented wife of 60 years, the former
Helen Lockwood, his daughter, his
grandchildren and
his greatgrandchildren.
He was an a,'id hunter, fisherman
and golfer.
Many, like I, will mist him most as a
true friend.
AGNES
F.
ASHBY
Agnes F. Ashby, 83, of
Arkadelphia died May 25. She was
a retired attorney with Lookadoo,
Gooch & Ashby, former SecretaryTreasurer of the Democratic Party
in Clark County, Past President of
the Pilot International Club, a
member of the American Legion
Auxiliary and a senior member of
the Arkansas Bar Association.
Ashby was also an active member
of First Methodist Church.
Survivors
include
three
brothers, two sisters and nieces and
nephews. Memorials may be made
to First United Methodist Church
or the charity of the donor's choice.
ANTHONY
GEORGE KASSOS
Anthony George Kassos, 75, of
EI dorado died on April 4th. He
was a sole practitioner, having
received his Jaw degree from the
University of Arkansas in 1940. He
served in the Arkansas House of
Representatives for one term in
1941, and was a member of the
Arkansas Bar Association for 53
years.
Survivors include his wife.
Florence W. Kassos; three sons,
Anthony George Kassos, Jr., John E.
Kassos, and David Kassos; one
daughter, Laura Jeanne Villegas;
and five grandchildren.
PHARMACIST·ATTORNEY
PHARMACY SCHOOL ASSISTANT
PROFESSOR
Available as:
• Consultant
• Expert Witness
On cases involving:
• Malpractice
• Pharmaceuticals
Virgil Van Dusen, J.D., R.Ph.
7130 S. lewis, Suite 720
Tulsa, OK 74136
(918) 494-5843
YOUNG
LAWYERS'
SECTION
COLUMN
The Young Lawyers路 Section:
Past, Present and Future
By Brian Ratcliff
What do Bill Wilson, Bill Prewett, H.
T. Moore, J. C. Deacon, Ted Boswell,
Judge Jack Lessenberry, and Frank E1can
all have in common? They are all
distinguished past Chairs of the Young
Lawyers' Section. The Young Lawyers'
Section has been in existence since 1946
when Paul Sullins served as its first
chair. The purpose of the section is to
stimulate the interest of young members
of the Bar of Arkansas in the objectives of
the Arkansas Bar Association. The
Section also provides younger members
of the Bar with more effective means to
participate in activities directed toward
improving the administration of justice
and promoting the public welfare. This
purpose has been accomplished by such
projects as the Senior Citizens'
Handbook (now in its sixth edition),
founding Arkansas Volunteer Lawyers
for the Elderly, the Bridging the Gap
Seminar, and the Statute of Limitations
Handbook. These projects and programs
have become proud recipients of praise
from the entire Bar Association. Lucinda
McDaniel has completed her year as
Chair. Through her hard work and
organization, the preceding projects
were made possible.
I have been given the opportunity
and privilege to lead this section for the
upcoming Bar year. I am truly excited
about the forthcoming year and look
forward to the projects and challenges
that are presented to our section. We
have several new projects which are in
various stages of completion.
Ruth Ann Wisener of Pine Bluff has
chaired the Consumer Law Handbook
committee. This is a first edition
handbook by our section. The handbook
advises consumers on what types of
investigations to make and what type of
questions to ask before entering certain
transactions and agreements. The
handbook has sections addressing, for
example, buying a used car, the Fair
Debt Collection Act, consumer scams,
and the Fair Credit Billing Act. It is
being funded by grants from the
American Bar Association, IOLTA, and
the Arkansas Bar Foundation. In order
for us to bring this handbook into the
consumer's home, we arranged to
appear on the television program '7 on
Your Side." You may have seen our
handbook and television appearance
earlier this summer.
We have also received funding from
the American Bar Association and the
Arkansas Bar Foundation to print a
disaster relief pamphlet. This, too, is a
first edition publication. William S.
Roach of Pine Bluff is preparing the
pamphlet which will address legal
services that are offered in times of
disaster. The pamphlet is being
designed so that it can be handed out at
the disaster scene to those in need of
services.
Through the hard work of Lisa
DeLoache, the section has received a
grant from the American Bar Association
to publish a desk manual for attorneys in
the field of Elder Law. Arkansas ranks
among the highest in the nation in the
percentage of its population who are 60
years of age or older. As the average age
of the citizens of our state rapidly
increases, this is a blossoming area of
law in which all attorneys should be
prepared to advise clients. The manual
will address several areas of substantive
law including probate and trusts,
alternatives to guardianship, Medicare
and Medicaid, nursing home law, and
Social Security. We are currently forming
a committee to write the sections and
publish the completed project in a
notebook format.
While working on these three new
projects, the section continues to sponsor
its annual Law Day project where young
lawyers go into high schools throughout
the state addressing constitutional issues.
This year we presented the case of What's
So Free About Speech, requiring high
school students to decide the case of Opi,
Taylor v. Mayberry School Disl riel. Opie
Taylor, as editor of his high school
newspaper, devotes a section of the paper
to the status of homosexuals in the
military. The students addressed the
First Amendment as it relates to freedom
of speech. The section also continues to
sponsor the Bridging the Gap Seminar,
the Spring Trial Practice Seminar, and
receptions with both law schools.
The present is quite exciting, and the
future promises to be just as exciting.
Steve Quattlebaum is the Chair Elect of
the section. Steve has been one of the
hardest workers in our section. Through
my support, that of Steve Quattlebaum,
and all the other hard-working members
of our section, we will strive to continue
to serve the Bar Association and the
community
in
promoting
the
administration of justice and improving
the public welfare just as those
distinguished members metioned earlier
did before us.
LAW
UNIVERSITY OF
ARKANSAS AT
LITTLE ROCK
SCHOOL OF LAW
OUTSTANDING FACULTY. Ranko
Shiraki Oliver received the 1993
Outstanding Teacher Award for the entire
University at a special award dinner on
April 30th. It was the first lime in the five
year history of the UALR awards that a
Law Faculty member had won an allUniversity Award. Professor Tom
Sullivan won the Law School Award for
Scholarship, while Professor Frances
Fender Rosenzweig won the awa.rd for
Service. Professor Dennis Hansen was
elected the outstanding faculty member
by the First Year Gass. Dean Eisenberg
was elected outstanding faculty member
by the Second Year Class, while
Eisenberg, Professor Scott Stafford and
Professor John Pagan tied for the Third
Year Class honors.
LAW WEEK EVENTS. During Law
Week, Richard S. Arnold, Chief Judge of
the United States Court of Appeals for the
Eighth Circuit, spoke to the students on
recent Eighth Circuit decisions and
changes in the Federal Rules of Appellate
Procedure... Also during Law Week the
Delta Theta Phi Legal Fraternity
sponsored a panel on racism. Included on
the panel were UALR alumnae Sharon
Priest (former Little Rock mayor) and
Marva Davis. Other panelists included
Meredith Oakley, columnist for the
Arkansas Democrat Gazette; Little Rock
Attorney Wendell Griffen, and Dean
Eisenberg.
RACE JUDICATA. Professor Ken
Gould won the annual 3 kilometer race
held at the Law School on April 17. Judy
Lansky finished first in the women's
division. Finishing first in the faculty
division was Professor Dent Gitchell,
while Howard Eisenberg won decisively
in the Dean's Division. Both Gitchell and
Eisenberg had the sense to finish behind
Arkansas Supreme Court Justice Robe,rt
Brown, as did Judges Judith Rogers,
Robin Mays, and Ellen Brantley.
However, Judges Rogers, Mays, and
Brantley tied for first in the "strolling
division" of the race. Funds raised by the
race were donated to Central Arkansas
Legal
52
~rvices.
ARKANSAS LAWYER
SUMMER 1993
SCHOOL
NEWS
SPORTS LAW TOUR. Professor
Glenn Pasvogel and Dean Eisenberg
accompanied twelve students on the First
Annual Sports Law Tour to Chicago. The
event, held between the end of final
exams and graduation, included three
Chicago Cubs games and massive
quantities of the types of food that made
Chicago famous. Due to Professor's
Pasvogel' s well known abstinence, no
liquor was consumed on the trip.
Pasvogel was last seen at a reggae bar on
orth Clark Street, not far from Wrigley
Field.
FACULTY ACTIVITIES. Coleen
Barger was one of two speakers at an all
day CLE seminar on revocable living
trusts in Arkansas sponsored by the
ational Business Institute. She also
chairs the Arkansas Bar Association's
Probate and Trust Section and is a
member of the ew Lawyer Task Force of
the Bar Association.... Professor Paula
Casey, who represented the Arkansas Bar
Association during the legislative session,
spoke to bar groups in Sebastian and
Jefferson Counties, and to the DebtorCreditor Bar on the action taken by the
Arkansas legislature. She also presented a
program at the annual meeting of the Bar
Association.... Dean Howard Eisenberg's
article on "Rethinking Prisoner Civil
Rights Cases and the Provision of
Counsel" appears in the Spring issue of
the Southern nIinois University LAw Journal.
Dean Eisenberg spoke to the Little Rock
Downtown Rotary Club on April 29 on
"Should We Tear Down the Law School
and Build a Bowling Alley? Or Lawyers
as Parasites." Dean Eisenberg will discuss
ethical issues in the representation of
alleged delinquents at the annual meeting
of the Bar Association... Professor Dent
Gitchell served as a team leader at the
NITA Florida Regional Program in Fort
Lauderdale and as a team leader at the
Emory Intensive Trial Techniques course
in Atlanta. Dent also served as vice-chair
of the National Conference of Christians
and Jews 1993 Humanitarian Award
dinner honoring Governor Jim Guy
Tucker.... Professor Sarah Howard
Jenkins' article "Coordinating the
Expedite Funds A vailability Act with
Regulation J and U.CC 4A-404:
Acceptance,
Availability
and
Cancellation" will appear in the Summer
issue of the Uniform Commercial Code 1..Jlw
100mml. Professor Jenkins will address the
Arkansas State Convention of ational
Association of Colored Women's Clubs on
"Community Service-Continuing the
Historical Role of the Black WomanLifting
as
They
Climb,"
in
June....Professor Phil Oliver's article on
food animals (opposing the use of animals
for food) appeared in the Los Angeles
Times and in newspapers in Arizona,
Tennessee, Rorida, Virginia, Minnesota,
Ohio, Wisconsin, Vermont, and Alabama,
as well as the Arkansas Democrat Gazette.
It is not true, however, that the ational
Association of Cows, Pigs, and Sheep had
awarded Phil their humanitarian of the
year award .... Ranko Shiraki Oliver spoke
on the Americans with Disability Act to
the 1993 Workers' Compensation Law
Institute and to the Family Training
Project Meeting on Education. She spoke
on the same topic at the Arkansas Bar
Association's Annual Meeting...Professor
Betsy Parsons spoke at the annual
training session of the Little Rock District
of the U.S. Army Corps of Engineers on
'Women in the Workplace... An Invitation
to Dance?" Professor Parsons has been
appointed co-chair of the Association of
American Law Schools' Section on
Women
in
Legal
Education's
AntiHarassment Committee...Professor
Glenn Pasvogel spoke to the Pulaski
County
Bar
Association
on
Debtor/Creditor Law Update....Professor
Frances Fendler Rosenzweig attended a
conference at Columbia University on
Privatization in Eastern Europe in
February. She also organized a panel
discussion on "Unique Challenges Facing
Women Lawyers." Participants included
Judge Annabelle Clinton Imber, Marva
Davis, Barbara Halsey, Patty Lueken,
Didi SaIlings, and Laura Hensley Smith.
Her article "Director-Exculpation Gauses
Under the Arkansas Business Corporation
Act of 1987" will be published in the next
issue
of
the
UALR
Law
Joumal .... Distinguished Professor Robert
Robert Wright III, was elected Secretary
of the American Bar Association's General
Practice Section at the Association's
annual meeting in San Francisco.
Professor Wright authored an article,
"Advocacy and the General Practitioner,"
which appeared in the spring issue of the
Section's magazine, Tile Compleat Lawyer.
More Federal Tax
Publications on Disk
By Barry D. Bayer & Benjamin H. Cohen
Six months ago we reviewed the
CCH Standard Federal Tax Reporter and
the score of other discs that comprise a
rather complete federal tax library on CDROM and replace walls of bookshelves.
The software was easy to install and use,
and the material complete and reasonably
priced.
This week we look at the TaxBase
electronic federal tax publications from
Tax Analysts. The software is easy to
install and use, the material available is
complete and less expensive than CCH,
but is updated less frequently and doesn't
provide as much analysis and annotation
asCCH.
Multiple Formats
TaxBase comes in two different
formats - CD-ROM and floppy disk can
be loaded onto the hard disk. The Internal
Revenue Code (Title 26 of the United
States Code), Treasury Regulations (Titles
26 and 27 of the Code of Federal
Regulations) and an ever growing group
of Taxpayer Information Publications
(TIPS) each form a separate set. These
same three title also come loaded on a
single CD-ROM. Revenue Rulings and
Revenue Procedures take up one disc;
Private Letter Rulings and Technical
Advice Memoranda are divided into one
disc from 1980 to 1989 and another from
1990 to the present.
The data bases seem to be the same,
whether residing on CD-ROM or hard
disk; the CD-ROM version of the Folio
search engine, however, has more bells
and whistles than the hard disk version.
An IBM PC or compatible, 512 kilobytes
of memory, plus a standard CD-ROM
drive and Microsoft extensions for the
CD-ROM version, or a high density
floppy disk drive and a large hard disk
for the other, are all that is needed to run
the prod uct.
Installing the Floppies
To install the floppy based Code, we
placed the first disk into the disk drive,
typed LOAD and the Enter key. The
automatic installation program requested
we enter the source and destination of the
files, started loading data from the first
disk and told us when to pull the old disk
and insert the new one. This can take a
long time: the Regulations need 14 disks,
with half that each for the Code and Pubs.
Allow a half hour or more depending on
computer speed, to load a file. Hard disk
requirements are 28 megabytes for the
Regulations, 15 for the Publications and
almost 10 for the Code.
Installing the CDs
Installing the CD was also automatic:
an Install program on each CDROM disk
transferred about 350 kilobytes of
software and configuration files to our
hard disk. The data files, of course,
remain on the CD-ROM. Each of the five
CDs is independent of the others, but the
same software runs any of the five, so the
installation need be done only once.
Database Scope
The Internal Revenue Code material
marked February, 1993, purports to
include all changes in the Code through
January 30,1993. The Code includes
official background notes, and some Tax
Analysts material. Some recent additions
are shown highlighted, or in yellow on
our color monitor. The header to Section
501, for example, notes material including
the 1992 Nat'l Energy Policy Act. The
newly included material is included as
subsection 21 of Section SOl(c), and shown
in yellow at that point of the Code.
We weren't familiar with 27 CFR,
which turns out to be the Treasury's
Alcohol, Tobacco and Firearms
regulations. In addition, of course, are the
more familiar (to us) regulations of 26
CFR, again claimed to be current through
January 30.
The Publications section has more
than 125 official IRS publications; we had
seen some of them before, but were
unfamiliar with most. The publisher
claims that many of them are not widely
available, even from the IRS and hopes to
include even more titles with each
update. Even some IRS posters are
included as "publications." Many, if not
most, of the large format tables in these
publications are not included, but are
available in paper format from Tax
Analysts.
The combined Revenue Ruling and
Revenue Procedure database claims the
full text of all such documents issued
since 19S4. The Letter Rulings and
Technical Advice Memorandums are
divided into a 1980-1989 set, and a 1990 to
present database; these documents have
Tax Analysts summaries and headnotes.
Each database except the 1980-1989
Letter Rulings and TAMS disk are
updated quarterly. The publisher also
promises a Code update "within 20
working days after the passage of any
major tax bill."
Searching and Stuff
Each of the databases, even the Code,
Regulations and TIPS material contained
on a single CD-ROM, are separate. There
are no hyperlinks between one database
and another; in fact, even references
between Code sections within the Code
are not linked. There are folio "groups"
within databases, making it possible to
search just headings, or titles, rather than
full text, and jump from a title directly to
the text. We feel that the publisher could
make much better use of linking available
with the Folio software. We were told that
improvements are planned for future
releases, beginning with the May, 1993
material.
The CD-ROM product lets the user
log research by client or matter, and save
search queries and attach user notes to a
given "folio." These amenities are not
available on the hard disk-based
prod ucts. Of course, portions of the text
may be printed or saved to disk. When we
used a database from within Microsoft
Windows 3.1, we were able to copy
material to the Windows clipboard, and
paste it directly into our word processor.
Being familiar with Folio, we had no
trouble with search technique, but on-line
and printed manuals should help even
Folio beginners to get started with little
difficulty. Toll free technical support, 8:30
AM to 6:30 PM, Eastern time, was easy to
reach, but one support person we spoke
with suggested only that she could take
our name and phone number, read the
manual herself, and then call back and try
to answer our questions.
Value
The advertising from Tax Analysts
makes the various databases seem
inexpensive, and they are. The hard disk
based material costs $99 for a single set of
the Code, Regulations or Publications,
with an additional $100 per database for
three quarterly updates. Each of the CDROM discs are $199 for a single copy and
an additional $100 for three quarterly
updates. Obviously, if you have a CDROM drive, $300 for a year's subscription
to the same materials is a good deal.
Al though not mentioned in the sales
literature, we are told that renewal annual
subscriptions will also be $100 per year.
Printed versions of the Code and
Regulations updated semi-annually, are
available from CCH for about $175.00, but
we consider the electronic publications
much easier to use than the printed
material.
Add annual subscriptions for the
Revenue Rulings and Procedures disk and
current Letter Rulings at $300 each, and
you're left with a user cost of $900 for the
first year, and $300 per year thereafter.
This compares, although not directly, to
the CCH Standard Federal Tax Reporter
wltich includes the Income Tax Code and
Regulations, CCH analysis, currenl tax
cases, and at least references to Revenue
Rulings and Procedures and Letter
Rulings, updated with a new disc each
month and a newsletter each week. CCH
charges $1290 per year on a two year
subscription for all of the above, and less
than $400 per year if you also purchase
the multi-volume loose leaf service. The
full text of the Revenue Rulings and
Procedures and TAMS on CD-ROM are
several times more expensive than the Tax
Analysts versions.
Further complicating comparisons,
both Tax Analysts and CCH have
substantial discounts for multiple
purchases, and charge premiums for
multiple users on a network. (We're sure
54
ARKANSAS LAWYER
SUMMER 1993
each company's sales representatives will
explain pricing in detail.) Also to be
considered, although we like the Folio
search software that Tax Analysts uses,
we prefer what CCH has done with its
Access software.
Although tax professionals may need
the editorial material and more frequent
updates provided by CCH, the Tax
Analysts CD-ROMs represents excellent
value to any professional at all interested
in federal taxes.
Summary
The Tax Analysts electronic
publications of the IRS Code, Regulations,
Revenue Procedures and Rulings, and
Private Letter Rulings and Technical
Advice Memorandums are easy to use
and provide excellent value.
Details
1993 Internal Revenue Code on
Diskette, 1993 IRS Regulations on
Diskette, 1993 IRS Publications on
Diskette. Price: each set: $99.00 for single
order; $199.00 for annual subscription
including three quarterly updates.
Subsequent annual renewals, $100, each.
Requires IBM PC or compatible, high
density 3-1/2 or 5-1/4 floppy disk drive,
512 kilobytes of memory, from 10 to 30
megabytes of free hard disk space.
1993 Internal Revenue Code, IRS
Regulations and IRS Publications on CDROM, IRS Revenue Rulings and
Procedures on CD-ROM, (1954 to
Present), IRS Letter Rulings and Technical
Advice Memorandums 1990 to Present.
Price: each set, $199.00 individual disk,
$299.00 for annual subscription induding
three quarterly updates. Subsequent
annual renewals, $100, each. IRS Letter
Rulings
and
Technical
Advice
Memorandums 1980 to 1989. Price:
$199.00. Requires IBM PC or compatible,
512 kIlobytes of memory, CD-ROM drive
with Microsoft extensions. Tax Analysts,
6830 Fairfax Drive, Arlington VA 222139901. Phone: (800) 955-2444 or (703) 5334600. Fax: (703) 5334444. Commerce
Clearing House, Inc. 4025 West Peterson
Avenue, Chicago, IL 60646. Phone: (BOO)
248-3248 or (312) 583-8500.
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accurate and trustworthy. A party may
arrange to have a stenographic
transcription made at the parties' own
expense. Any objections under subdivision (c), any changes made by the
witness, the witness' signature identifying
the deposition as the witness' own or the
statement of the officer that is required if
the wi mess does not sign, as provided in
sub-division (e), and the certification of
the officer required by sub-division (f)
shall be set forth in a writing to
accompany a deposition recorded by nonstenographic means.
Pursuant to the federal and Arkansas
procedures, deposition may only be
taken by videotape if the parties so
stipulate in writing or if the court orders
the deposition to be recorded by other
than stenographic means. Whether the
video-taped deposition is taken pursuant
to a stipulation or an order, the following
information should be included in the
written stipulation or the order
authorizing the recording of the
deposition by videotape: (l) the person
before whom the deposition shall be
taken; (2) the manner of the recording
(videotape); (3) the procedure for
preserving and filing the deposition; and
(4) other provisions to assure that the
recorded testimony will be accurate and
trustworthy.
Parties often desire to have a
stenographic transcription in addition to
the videotape recording. Thepresenceofa
stenographer assures that the record will
be
accurate
and
trustworthy.
Additionally, the recording by a
stenographer facilitates the presentation
of objections to the court. (See the
discussion of objections below).
Finally, the federal and Arkansas
procedures require that the recorded
deposition be accompanied by a writing
which sets forth:
(a) any objections lodged as to
the administration of the deposition;
(b) any changes made by the
witness;
(e) the witness's signature
identifying the deposition as the witness's
own, or a statement of the recording
officer, if the witness doesn't sign; and
(d) a certification by the officer
that the witness was duly sworn and that
the deposition is a true record of the
testimony given by the witness.
UNIFORM AUDIO·VlSUAl
DEPOSITIO ACT
The federal and Arkansas procedures
are workable procedural devices, but fail
to recognize. the prevalent acceptan~e by
the bar of VIdeo technology as a reltable,
accurate and useful tool for recording the
l'
~~
~
I'o;>'k-.~
testimony and demeanar of witnesses. The
federal and Arkansas procedures are too L'~'~li'
restrictive on the right to use video . ~'1i
recording devices and lacking in detail. '. ~f'..'
The Uniform Audio-Visual Act, 112 U.l.A.
r, ~~
13 (Supp. 1992)J ("the Uniform Act"), '~"'" •.~~1
provides much more detail. It reads as {t.::t.~~
follows:
'. "'-'>:,f~~
"§1. Authorization of Audio-Visual :~~-?~
Deposition
~'~; ,
"(a) Any deposition may be :~':
recorded by audio-visual means without a ~t\~
stenographic record, Any party may make '. ~~ .
at his own expense a simultaneous.'" .....
stenographic or audio record of the ::. :t.
deposition. Upon his request and at his ' , ..
own expense, any party is entitled to an
audio or audio-visual copy of the audiovisual recording.
"(b) The audio-visual recording
is an official record of the deposition, A
transcript prepared by an official court .....".,,,'"
reporter is also an official record of the
deposition.
l(}j~~~
"(e) On motion the court, for i:.~~'ilj
good cause, may order the party taking,
or who took, a deposition by audio-visual
recording to furnish, at his expense, a
transcript of the deposition.
"§ 2. Use. An audio-visual deposition ~~ll4:"'<l\.~
may be used for any purpo e and under
any circumslances in which a
stenographic deposition may be used.
"§ 3. Notice. The notice for taking an
audio-visual deposition and the subpoena
for attendance at that deposition must
state that the deposition will be recorded
by audio-visual means.
1'tJ~~~
"§4. Procedure.
The following ~
procedure must be observed in recording '.
an audio-visual d e p o s i t i o n : f ; l · · ~~'.
"(1) (Opening of Deposition.) The I" 's:r~
deposition must begin with an oral or ~~ .~~
written statement on camera which ~)?:~
includes:
•••~,-,,;
"(i) The operator's name
. ..,,~
and business address; (il) The name and ~'\~
business address of the operator's .: .
employer; (iii) The date, time, and place of
the deposition; (iv) The caption of the ' ...i',,~~~
case; (v) The name of the witness; (vi) The iill:;
party on whose behalf the deposition is r~~~
being taken; and (vii) Any stipulations by . )~~i!
the parties.
.~ ...~
"(2) (Counsel.) Counsel shall ~ ~
identify themselves on camera.
;f' ~
"(3) (Oath.) The oath must be • ' ••. '
administered to the witness on camera.
'~'-" :.
"(4)(Multiple Units.) If the length 1.·....·oN':*'
of a deposition requires the use of more 12
than one recording unit, the end of each ",:t-~
unit and the beginning of each succeeding ~~-a5'~
unit rnus~, be annOl~.nced on cam~r~.
1~"ll':
(5) (Closmg of Depos'hon.) At ';t~~
the conclusion of a deposition, a statement"~. ,~
«
,.
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'.!'~~f~'1Y;'.}i;-.. '~"'i.;~{~{,-
~ ~:!!.( \;:"'
~~.::.
-'... . \ott ~~f....
must be made on camera that the
deposition is concluded. A statement may
~..,ll>.r
["~;f
be made on camera setting forth any
~~~
stipulations made by counsel concerning
~~.l!· the custody of the audio-visual recording
:'t.
and exhibits or other pertinent matters.
'.p;
":'";>
"(6) ([ndex.) Depositions must be
t:-l... t ......,
I':;":')"'~' '!. indexed by a time generator or other
~~" method specified plmuant to Section 6.
L•.:-;~
"(7) (Objections.) An objection
~~~~I must be made as in the case of
[~lc t~ stenographic depositions.
~~i{'~
"(8) (Editing.) If the court issues
~,~
an editing order, the original audio-visual
'
''"':.t~ recording must not be altered.
'1, ".}1~J':
"(9) (Filing.) Unless otherwise
.. ~~.... stipulated by the parties. the original
~;,..~:_ audio-visual recording of a deposition,
kr-.. ~, any copy edited pursuant to an order of
:~" the court. and exhibits must be filed
~.-:it:.: forthwith with the clerk of the court.
~.:.{~
"§5. Costs. The reasonable expense of
~,~~) recording, editing, and using an audio:r~~" visual deposition may be taxed as costs.
ol" ~-t4~..
"§ 6. Standards. "The [Supreme Court,
Court Administrator, Clerk] may
~1~, promulgate rules establishing standards
"'~ for equipment and guidelines for taking
"'l·~~ and using audio-visual depositions. I
. t'(:"~_ Incompatible audio-visual recordings
.~~;..~ must be conformed to the standards at the
expense. of the proponent. Both recordings
i"l:':C; .It are ongmals.
...~:- :"-.......
"§ 7. Uniformity of Application and
:.:;;;: . Construction. This (Act] (Rule] shall be
~: ....,;; applied and construed to effectuate its
~. ~~" general purpose to make uniform the law
t.~~.. f-;(:"" with respect to the subject of the [Act]
:·~i.~~, [Rule] among states enacting it.
1ii[\~
"§8. Short Title. This (Act) (Rule] may
)•• ,~\. ..:r_. be cited as the /lUniform Audio-Visual
4;;t;"'"-,.,;,;'. Deposition (Act) (Rule]".
~ ~;.~
"§9. Time of Taking Effect. This (Act]
.... ':-,.
; '::-..:'" (Rule] shall take effect . . . "( ote:
, ..~~~ Bracketed material is deemed optional by
~ "'.'4:;;. the
ational
Conference
of
~.,!:..... rr'i Commissioners on Uniform State Laws.
"~J"" ~ The section titles are also optional.)
r}'p';';p~,~.~ It is not necessary to dissect the
~r~".i; Uniform Act in this article as it is self
•nJ-::"I. explanatory, but its comprehensive design
l:1t ~.. ~, is not superfluous. The issues addressed
.~.:.:~ in the Uniform Act are issues which
'....{,."ti· regularly give rise to controversy during
;:.!f/i?z~ the course of a videotaped deposition. The
~".);,4 wise practitioner will take note of the
;(;t~. ~ provisions of the Act and incorporate
~@\l~'~' them into orders or stipulations utilized in
~_~"'_:',; federal court or jurisdictions not following
t. the Uniform Act.
IIl- :-;, STIPULATION
,~
.
if you intend to record a deposition by
,;'f-'. videotape. the following issues should be
,~ .. ;;:,;'" included in any stipulation or order
I~~': goveming the procedure for the recording
~,.
r
,
....,.
. .
<try
~
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of the deposition by videotape.
(J) The scope of the stipulation: Whether
the stipulation is intended to govern only
one deposition, a series of depositions or
all depositions in the case should be
stated at the beginning of the stipulation.
If the stipulation is to cover only one
deposition, that deposition should he
identified by time and place.
(2) Notice of intent to videotape: If the
scope of the stipulation includes a series
of depositions or all depositions, the
stipulation should ensure that the party
defending the deposition receives notice
of the intent to videotape the deposition,
sufficiently in advance of the deposition
to provide for proper preparation. Five (S)
business days is generally considered
sufficient advance notice.
(3) Deposition officer: If possible. the
officer who shall be responsible for
recording the deposition should be
identified in the stipulation. If the officer
cannot be identified at that time, the
notice of intent to videotape the
deposition should include the name of the
officer or the company by whom the
officer is employed.
(4) The video equipment and its operation
and coutrol: The stipulation should clarify
that the deposition officer has exclusive
control over the video equipment and that
he/she will operate the equipment in a
manner
assuring
the
accurate
reproduction of the appearance of the
deponent. This provision of the
stipulation should also address the
necessity of timely objections to the
administration of the deposition.
(5) Special operation technique: The
camera angle, unless left to the operator's
control, should be stipulated as a neutral
angle. neither a low to high angle nor a
high to low angle. The use of "telephoto"
or "zoom" shots and "pan" shots should
be subject to redundant agreement of the
parties. Sometimes, zoom shots of exhibits
are necessary for the proper recording of
the testimony. Sometimes, pan shots of all
participants in the deposition are helpful
in visualizing the participants. However,
these techniques easily can be abused. The
use of day/time index on the tape should
also be required. The use of the day/time
index assures a continuous record of the
deposition and facilitates the reference to
objections or specific portions of the
deposition.
(6) Commencement of tire deposition: At
the beginning of the deposition, the
videographer should state his/her name
and business address; the date, time and
place of the deposition; the name of the
deponent; the identity of the party on
whose behalf the deposition is being
QUESTIONED
DOCUMENT EXAMINER
Expert Witlless ill over 50 Courts
in questioned bandwriting.
Over 15 years ofexperience
Knowledge oflnw enforcement
metbods ofinvestigation
Resume "pon request
COlltact:
Ada Meyer
934 Brookshire Drive
Evansville, IN 47715
(812) 479-8449
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is stopped and the parties are "off the
between the stenographic record and
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~:...... and recorded exclusively on the
(11) Expenses and tlte recoverabilify of
..."',,/'.... stenograp Ilie transcript. Th
I e
."":-:-"'1',.
us, t lC expellses
as costs: eneral I y, the party
,,,,.~;, . videotape isn't encumbered with desiring to record the deposition by
::~ • '. objections which require editing prior to videotape should bear the expense of the
~~t"J~ triaL II the objections are sustained prior
videotaping. Additionally, whether the
:\ ~"~t: to trial. the videotape can be edited to
expense of the videotape is considered a
; ~;.},;~_ exclude the objectionable testimony. This recoverable cost of the action should be
'''e'~~ procedure is often cumbersome if addressed in the stipulation. If the party
,~.(.:;..-. "'.' objections are numerous.
requesting videotaping is not the party
(9) MOllitors: The stipulation should responsible for the stenographic expense,
~~ add.ress whet.her monitors .s~all be agreement rega~ding th~ division of the
.;...t. ':'f<- avatlable dUrIng the deposltton for expense of Videotaping should be
~f1ti!s~ viewing by any party. As discussed at included.
- ~"'t- length in the first segment of this series of
(12) Review of the videotape: The
~:~~: articles, it is important to have a monitor stipulation should assure that the
E~ xl: at the deposition.
deponent will have an opportunity to
(10) Stenographic reportillg: The review the videotape and any
1t~~' stipulation should state whether the stenographic transcript of the deposition
,; ~~ deposition is to be simultaneously and provide written notice of any
.":i:~; recorded by a stenographer and which inaccuracies. The opposing party should
~~1:':-: party shall bear the expense of the then be allowed ten days to dispute any
:-J:<l~'~~r stenographer. The parties should address proposed changes or corrections. The
~"~:*" in the stipulation the resolution of any parties should also stipulate whether the
,~- ;~: discrepancy between the video record and
party requesting that the deposition be
~~i the stenographic transcript. In the event recorded by videotape is obligated to
~~.} the stenographer utilizes .an aU~io provi~e a copy of the videotape to the
~... ~:' recorder as a secondary recordmg deVice,
opposmg party.
~,,''f. the audiotape should be preserved until
(13) Certificatioll of videotape: The
~; .. \~ the conclusion of the action as it may be parties should agree that the deponent
~,.?.'f"~ ': needed to resolve any discrepancies may review the videotape and c:ertify it as
~4;f video record," objections can be stated
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to cause an illusion of vibration on the
film because of the nature of the video
~}' recording process and plaids may
~ "camouflage" the witness with the
..v;.r.;-~'''' background. White clothing creates a
7te··~7t.; glaring reflection. Light blue, grey or
. ~~,.~ yellow clothing is preferable. Solid colors
~ 0;'
absorb light more evenly than stripes or
.~ ~~~ plaids. For women, makeup is dramatized
:l;t . ~ by the videotape, but the application of
;t~I' . facial powder during breaks to absorb
'l.f;)..., . moisture on the skin avoids the glistening
:i~~" . effect. Powder is sometimes applied to
~T' \ male witnesses to avoid the glistening
:-!'':~':' effect, but this is dangerous as the
t~ examiner, in an effort to detract from the
~~~ credibility of the male witness, may point
out that makeup is being applied during
breaks.
~ ;/Ji..
Witnesses tend to be more nervous
,~.~ during videotaped depositions than
..~~.~ during transcribed depositions. Thus, it is
:~~) ..., ': important that you place your witness
~~~: before a.video camera and. lights durin.g
~~,~ preparation. Whether the VIdeo camera 15
ft·~~ operating or not, the witness will become
. ~~... more accustomed to its presence.
~~ : DEMONSTRATIVE AND TECHNICAL
~l--~~-": AJDS
~ ~49j,
Videotaped depositions which last
:::~Gf.1 longer than thirty minutes will usually
'!':.~? J become boring to the viewer. Because
(.;~ f t television has conditioned us to focus our
~..~~.,,~ attention in segments, videotaped
:<~·f depositions should be distinctly
segmented. Television shows are
~J'i:-~~- interrupted
by
commercials
I\'~if..; approximately every 15 minutes. ews
shows are not only interrupted by
~~ .... " commercials, but are interspersed with
J. ~,~ film clips of the topic or story being
~~.Ji~"j discussed. To the extent that witnesses
~.;:~""~ being videotaped can use and refer to
'.1:~~~ demonstrative or technical aids which
~~:..~ break the visual monotony, interest in the
~';~~. videotape will be enhanced. Thus, for
• r;.f\.. -: long depositions one should use enlarged
l~""'" documents, photographs, models, video
,~ ..; ..)~ segments, computer graphics, x-ray films,
•~~ and action by the witness to enhance the
'-"'~~'.:~ persuasiveness of the production and
':,""~~ foster interest in the message being
~(~'~~~ presented. Discussed above is the use of
t;'~.:~ multiple video cameras when using such
l~;~~': demonstrative and technical aids to create
a split screen or window effect. When
<~;;. demonstrative aids are used, the use of
multiple cameras is preferable.
.!'-:.;:;J.' When one is relying upon a selected
". ':
number of documents, the documents
;c"~': should be enlarged, reproduced into
--' ::;." photographic slides or otherwise
" .~{.-.. graphically depicted for use at the
~ .. , "
;;:;t~~~~ videotaped deposition. It is important that
... ~:... the witness be prepared to use the
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demonstrative aids in a manner consistent
with videotaping. The witness must stand
to the side of the enlargement, not
between the camera and the enlargement,
and use a pointer. The enlargement must
be stationary, preferably on an easel.
Movement of the enlargement is annoying
and defeats the purpose of its use.
Secondary aids may be useful to the
witness in explaining the importance of a
particular scene portrayed on a
photograph or a particular portion of a
document. Adhesive arrows can focus the
attention of the viewer on the particular
part of the photograph or document being
discussed. U there is particular language
in a document upon which a witness's
testimony is focused, it may be helpful to
film the witness highlighting the
important language on the enlargement.
In this instance, it is often necessary to
have the witness step to the side and read
the language highlighted. These
techniques may seem.elementary,.but.a
smooth and persuaSIve production IS
dependent upon an awareness of the
camera. If multiple enlargements are
going to be used in a videotaped
deposition, it is important that the witness
be prepared to handle the enlargements i.n
an organized manner and not shuffle
through them portraying confusion about
the order of the enlargements. Obviously,
rehearsal by the witness will help or avoid
confusion to ensure a professional
production.
When a product is in issue, it is often
helpful to have a model of that particular
product. When a particular injury is in
issue, it's often helpful to have a graphic
aid to portray the extent of the injury.
Such graphic aids include skeletons,
diagrams of the nervous, muscular or
skeletal system, and models of the
particular bodily part involved. Again, the
witness should be prepared to utilize this
aid in a manner which results in a visually
persuasive production. The model should
be stationery whenever possible.
However, it should be movable so that it
can be repositioned to enhance a
particular perspective, but once
repositioned, it should again remain
stationary during filming.
X-ray films are often useful in
videotaped depositions of doctors. During
a recent videotaped deposition of a
doctor, a viewing box was provided at the
deposition for the doctor to show x-rays.
Her explanation of the films was
particularly persuasive because she used a
laser pointer which produced a red dot
wherever it was pointed. This simple
device dramatically enhanced the doctor's
illustration of a compressed and bulging
'
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rise to the lawsuit. These videotapes are
',,,.,,,
~:'~"':'::":~~~:
;s-- •
.
&~~~ =.~~
usually obtained from lriends or family,
but sometimes third parties have recorded
events from which the lawsuit arises.
THE USE OF VIDEOTAPES IN
WRO GFUL DEATH ACTIONS
In wrongful death actions, videotapes
of the family before the wrongful death of
a family member are significant. In one
such case, a 14-year-old boy performing at
a violin recital two days before his death
was videotaped by his father. A family
friend surreptitiously videotaped the
father videotaping the son. The friend's
videotape clearly portrayed the love and
pride of the father. Obviously, this tape
proved valuable during a settlement
conference.
As macabre as it may seem,
videotaping funerals has become an
optional service of some funeral homes. U
the funeral service shows extraordinary
grieving of the family or the large
numbers of persons present to pay their
respects to the decedent, the video may be
beneficial to the plaintiffs wrongful death
case.
Finally, even if videotapes of family
members are unavailable, the video
recording of a series of still photographs
often has more impact than the still
photographs indjvidually. This technique
is very useful not only in settlement
conferences, but also at various stages of
trial.
CONCLUSION
The use of videotaped recordings in
trial is limitless. Explore the creative side
of your brain and foster interest in your
trial by the use of videotaped recordings.
Jurors often complain that trials are
boring and dull. Avoid boredom by using
videotapes at your next trial and
simultaneously
enhance
the
persuasiveness of your case.
Steven W. Quattlebaum is a partner witll tthe
Williams & Andersotl UlW Finn in Little Rock.
BIBUOGRAPHY
SELECTED ARTICLES
Federal judicial Center, Pub. No. 76-3, Guidelmes
for Pre*Recording TestimOlIY all Videotape Prior to Trial
(2d ed. 1976) (hereinafter- "Ftdtral GUitklines"): Cenler
(or State Courts. Pub. o. R0034, Audio/Video
Ttchnology and the Courts: Guides for Court ManJIgers
(1977) (hereinafter "State Guidelines").
Murray, Using Vidto in LitiK"tion (PU 1983).
Charles D. Monteleone, Videotaptd Depositions:
&sic Pointers for Q Skilltd Presml/ltion, 68 A.B.A. J. 863
(1982).
The Federal judicial Center, Washington, D.C.,
Guidelines for Pre*Recording Testimony on Videotape
Prior to Too, f)C Pub. 0.76-3 2d., December 1976.
james P. Barber &: Philip R. Bates, Videotape in
CriminJII Proardings, 25 Hastings L.j. 1017 (1974).
Gordon Bennant, et aI., Juror Responses 10
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